DSpace at VNU: Confucianism and the future of law in Vietnam

DSpace at VNU: Confucianism and the future of law in Vietnam tài liệu, giáo án, bài giảng , luận văn, luận án, đồ án, bà...

OUPM A L OF SCIENCE, ECO NO M ICS-LAW , N01E, 2004 VN_Í O N 7U C IA N ISM AND THE FU TU R E OF THE LAW IN VIETNAM P ham D uy N ghia (•) was to explain w h a t the s ta te and law are e a teau tiful house blown down by a According to the hackneyed cliche, “the die to lack of re p a ir” and which law-based s ta te ” one of some newlyborrowed concepts, if not defined exactly, ụhet.ier Confucianism, which m to have been d e v asta ted by different -t>‘rn schools of tho ug ht, plays any role is often rashly reasoned as a type of state Fortunately, th e in tellectual have been ,h3 col stru ctio n of th e V ietnam ese law n kỉeps torm enting the contemporary s â ị the n ext generations enlightened th a t governm ent’s tool This article law is not ju s t a c}es ipon some problem s re lating to The questions raised h e re are ‘W h at Ị r)le jnd lim itation of law in th e way it are the striking features in th e history of u>ncf3 people’s the V ietnam ese state and law developm ent ojicti'n betw een C onfucianism and th e and a p a r t from th e influence of Chinese measures behaviors to a d ju st and people’s c u ltu re ’ ‘W hat distin gu ished V ietnam ese ^ia/ior This article also raises some legal rysal to m ake contribution to bringing ]^ vtiarri’ w ritten law close to its people questions need an sw ering for every nation p a tte rn s in o th e rs ’ Both these which rule over its people’s behaviors After the Cold War, ideology h as no longer been a gap betw een nations While ] is common knowledge th a t cultural e e n o m ic from has its own characteristic, and custom s ADoctrine for V ietn a m ese C urrent Law d culture legal harm on izatio n is pu shed up by global different free trade, the im portance of national ‘i^ies from Prim itive Com m unism , iV>ry Feudalist, C ap italist to Socialist , - ị e s \re widely introduced in the s tate cultural J rental law textbooks Sometimes, the significant This is sim ilar to the freedom li y £ our n a tion is ignored so the cuntry fits in one ready made )C?1 A such, th e re h ave been different of state and law It is jurisdictional and pcern V ietnam ese out the in su lt of being poor an d backward, ijsopy t h a t universe, h u m a n ir s a d society th a t are often based on the very first th in g th a t le a rn e rs of law doctrines, not legal identity culture, p reserv atio n h as independence become protection including extrem ely of our country from colonialists’ invasion in the n in e te en th century So, in order to preserve national ch aracteristics and w ash should is to u n d e rs ta n d a n d honor the legal culture and jurisdictional philosophy of th e ir country r acultofLaw, Vietnam National University, Hanoi 24 Confucianism and the future o f the law in Vietnam - — —25 To u n d e rs ta n d V ietnam ese law and its social organization, it is a need to u n d e rsta n d V ietnam ese history of ideology developm ent for people’s way of thin k ing affects th e ir behaviors Only by th a t way can we explain w hat th e V ietnam ese respect, love, h a te or fear as well as can u n d e rs ta n d th e way they organize th eir own activities, which is so called culture V ietnam ese ideology can be divided into two categories: Common ideology- ideology of common people, descended from this generation to a n o th e r by m ean s of folklore and academic ideology- ideology of the intellectual Such tra d itio n a l ideologies should be studied thoroughly and han ded down to the next generation before alien ones come up with n a tu lly t h a t it leaves tra c e ln V ietnam ese cultu l vestige T hro ug ho ut history, each eYy ago own u n d e rs ta n d in g of Confucianism Y\ are different schools of Confi-ucHn m Confucianii: m, I n Confucianism, T ang Confuciam including Prim itive 16m s, Confucianism, Neo-Confucianism, T raditional C onfucianism , fcchcia 1C Confucianism a n d Common Confucia • C ontem porary Neo-Confucianism K*r rn Confucianism, J a p a n e s e Confuciaiisi Singapore C onfucianism Of L :ne v arian ts, th e re m u st be unchan^pH ^ r t Also, as a th o u g h t of life, Confucia Song Confucianism in parti-ula* ’ẵ th o u g h t based on a m ix tu re of Bucdl most and Taoist elem en ts and indigenous lai' gradually becam e ethnics of lifci It „ fu n d a m e n tal elem en ts in the foundation of t h a t the Ja p a n e se , K orean and Cl n the V ietnam ese ideology It is believed w a n t to b reak th is tra d itio n a l Pliloo,' th a t Confucianism is one of th e three of life while enriching th e ir couit'ies A religions thought, Confucianism is one of (Confucianism, Buddhism) which the Taoism influence and V ietnam ese once deep-rooted in p^p consciousness, in spite of be:nj dft] culture In fact, C onfucianism is not an Confucianism does live perm am rU y ideology because it was not Confucius who way it affects people’s way of tliik in I created th e ir th a t kind of m entality And behaviors Thus, studying Confucianism is not a religion of which trad itio n al philosophy to e x p l a n w h c Confucius is the h ead like th e case of s tate a n d law are m e an s stacyin Catholicism a n d Jesu s Confucianism is a trad itio n al way philosophy forefathers to of life according to which of thinking explain sone of ci*r people live a comfortable a n d peaceful life, phenom ena This is a key to bnrg W(t w ith no difficulties in th e ir household, legal docum ents close to the n erets th e ir clan, th e ir village a n d th e ir natio nal people in V ietnam Only by that wa affairs This kin d of philosophy h a s been a law foundation consciousness for V ietn am ese society for live p e rm a n e n tly O therw ise, h pep al bor-)v th o u san d s of years a n d p e n e tra te d into schools of th o u g h t will soon befogotij- V ietnam ese consciousness so deeply and our thou sand -yearlon g histor;/ V N I L Journal o f Science Economic s -Im w , N„IE, 2004 Pham Duy Nghia 26 T here may be some un derly ing reasons for Confucianism’s being devastated Firstly, it may originate from th e W estern education movem ent in which c u lture and civilization were mixed m eanw hile Confucians were bew ildered about w h a t to next to catch up w ith W estern civilization Secondly, it m ay begin from revolutionists’ movement of using Vietnamese originates from w h ere one s ta rts to find the h arm on y betw een individual and the universe introspectively According to th e books of th e Mean, Way of N a tu re is w h a t is endowed by God over which people’s behaviors are ruled Because everyone h as his own characters and inborn m akings, one is too much while tra n scrip t which un in te n tio n a lly created the o ther is not enough, he needs to be the gap disabling th e offspring to read educated appropriately T em p e te person th e ir an n als F u rth erm o re , is the one who knows how to control his was h a rs h emotions, e ith e r Confucianism m ovem ent like t h a t in C hina everything is after the Chinese revolution, Confucianism medium is im p a rtia l behavior, a basis for in V ietnam leading the right The harmonious is uncontradictory doctrine in organizing society It more or behavior - a common link betw een people less lost its hold on th e nation People only Therefore, Confucianism is a Doctrine of family although used there was some old Confucianism no no longer m anner to of a anti- speech propagandize of happy kept or angry, moderately The the M e a n [2, pg 20] new political tho ug hts borrowed from the West C onfucianism ’s philosophy of life is Not un til recent tim e h a s Confucianism mostly been studied again, which can be seen as including the roots civility, know ledge a n d loyalty, of which aroused benevolence is considered as the key to inte re st am ong W estern scholars W h at a Confucian ethics Like an energy storing sham e to us! T h a t Confucianism research seed giving life to buds, leaves and twigs, foundations have been m ushroom ing both benevolence decides h u m a n instinctive while in O riental Europe am azing and r e tu rn in g to c u ltu re has America a ttra ctiv en e ss th e indicates of the O riental philosophy of life in th e m odern world In tr o sp e c tiv e n e ss and T h eory o f R ectifica tio n of N am es as C on fu cian ism ’s M ea su res to A djust P e o p le’s B eh a v io rs based on five benevolence, basic virtues righteousness , appearance and characters The concept of benevolence in Confucianism is considered a fulcrum to push a large p a r t of h u m a n society into a stable, peaceful and kindness-oriented world Benevolence carries in it a narrow m eaning b u t also enjoys a broad sense a t the sam e time It fits all kinds of people It Like oth er E a s te rn philosophies, Confucianism believes t h a t th e p ath to may ta k e a whole C onfucian’s life ju st to look for th e values of th e word discover a n d conquer th e outside world V N U Journal o f Sc ience, Economics-Law, N„IE, 2004 Confucianism and the future o f the law in Vietnam The m ost general 27 m eaning of Confucius benevolence is love for all h u m a n beings A nnals The Mencius C hinese c h a c te r ‘J e n ’ literally of th o u g h t of A u tu m n highly W arring and Spring of benevolence, th e State gave re p re se n ts th e relationship betw een "two prominence to righ teou sness which is w hat persons," should be done by an individual to the or co-humanity People with benevolence are th e ones who love th eir community pare n ts, siblings, spouse as well as their know how to live sincerely, to hold back his fellow countrym en, and who have no ill sexual desire to keep things in order, to feelings for anyone Benevolence is best regret m aking m istakes, which keep them expressed in th e Confucian golden rule, away from evils They should neith er be "Do not to others w h a t you not w ant fond of richness nor a sh a m e d of poverty done to yourself' These people always As a h u m a n , th e two most valuable things consider o th e rs as th e ir dear, th in k in g of are benevolence an d righteousness without the universe as a unity, showing th eir which n a tu r a l not re lu c ta n t love Thus, they respecting surely enjoy a peaceful s ta te of mind and security In contrast, people w ithout benevolence have none [14, pg 82-83] a People w ith powerful king righteousness is not worth In co n trast to M encius' supposition th a t h u m a n beings’ in n a te n a tu re should only be nourished, according to Hsyn-tzu Benevolence also m eans tolerance to a person is born with an evil nature, others, a good u n d e rs ta n d in g to have the therefore rig h t a ttitu d e u n d e r all circum stances, civility People w ith civility know how to courage to a ssu m e responsibilities to be on supress th e ir sexual desire so th a t all o ne’s gu ard w ithin civility rules In other thoughts, words, benevolence helps people control conformity th e ir desires an d re sist all tem ptations respect to th e noble, piety to the old, faith G entlem en alw ays ta k e benevolence into account in all his activities like eating, d ressin g a n d difficulties speaking in Confucianism h u rries or is therefore practiced exactly like a religion Such a belief an d discipline formed ancient Confucians whom scholar N guyen Khac V ien considered respectable to be stran g e bu t The root of W estern legal c u ltu re is Catholicism while t h a t of the O rie n t is Confucianism a tte n tio n words w ith to th e superior, tolerance m eans to should and be paid behaviors civility are Civility to in m ans modesty to the junior, the coward cautiousness in Civility also speaking and dressing behaviors According to Hsyn-tzu, a nation w here righ teou sness and civility are respected is in order, otherw ise it gets into chaos “L earn how to behave first and th e n to re a d an d commonly found originates from w rite” - the slogan in schools H sy n-tzu’s nowadays respect for civility Politically, H sy n-tzu ’s theory does not put V N U , Journal o f Science, Econom ics-Law, N ()IE, 2004 a stre ss on legal punishm ent 28 Pham Duy Nghia However, because it m a in ta in s th a t to avoid p u n is h m e n ts w ithout being h u m a n beings are born w ith desires th a t, asham ed However, it is not the case if if not being guarded a n d restricted, would they are oriented by m orality”(Analects, lead h u m a n s to conflict a n d strife, and c h ap te r II) th a t in this sense h u m a n n a tu re is evil and goodness is only acquired from training, therefore, p u n is h m e n t is a m ajor concern For Hsyn-tzu, everybody values righteousness a n d benefits yet he should use his knowledge to ta k e th in gs into consideration Fei and Li Of his two disciples, H an Ssu, H an Fei extraordinarily ta le n te d influenced H syn-tzu’s by was and more heavily respect for civility As a result, he extrem ized the th ou gh t into legal fram ew ork and used “fame form ation” theory as a tool to govern A part from introspectiveness, theory of policy is also a tool of Confucianism to educate people T his th e o ry was discreetly implicated in th e A u tu m n and Spring Annals p ray ers a n d note-takin gs in the Analects of Confucius According to the Analects of Confucius, Confucius said th a t irratified n a m es lead to inconsistent words, incomplete w ork, merciless chorus and wrong p u n is h m e n t which, in tu rn resulted in people’s confusion So, for a virtuous m an w ith tified name, words and deeds accom panied each o th e i the country A nother In short, Confucianism is a foundation of self-adjustm ent, self-correction and sh am e preservation a n d it is a traditio n al thought to govern a nation Confucianism considers m orality as a basis of politics [7, pg 53] Although Confucianism does not deny the role of law in k eeping the society in order, it h ead s to the root of se urity th e r th a n th e p u n is h m e n t used for those who commit crimes A good point of civility is th a t it p rev en ts the evil even w hen there is no sign of it in o rder to bring people close to th e good, stay aw ay from the evil w ithout th e ir consciousness Thus, civility has an educational role, preventing insecure seeds while law is a n imposing and dom inating tool of th e ruler Confucius once said “If th e s ta te affairs are used to orientate people, p u n is h m e n ts are used to im plem ent the equality, people surely try C onfucian th o u g h t is m ain ta in in g an o rderly society of rank s and classes Confucius said: "There was Tao (a way or road of righteousness) only when fa th e rs w ere fa th e rs, w hen sons were sons, w hen R u le rs were Rulers and when m inisters w ere ministers." Every society is Dased on fam ily of which a virtuous m an is th e r u le r literally This one should Knowledge considered be and as two ed u cated civility carefully should mottoes be Civility is morality, knowledge is u n d e rs ta n d in g [ , pg22o] M anaging o n e ’s household m eans keeping family faithful, one’s fam ily m em bers th e arv inferior in harm ony emotional su bm its to All and the superior, th e su p erio rs ta k e care of the inferior So, t iat for h e rs should be fathers m eans p a re n ts w h e n alive should have sense of purpose a n d w h en dead should be VNU, Journal o f Science, EconomicS-Law, N„IE 2004 C onfucianism and the future o f the law in Vietnam 29 a good exam ple for children to follow should realize such non-motives and limit F a th e r ’s pro priety is clemency, child ren’s their negative impacts prop riety is piety Confucianism be useful to our p resen t day From then, people’s behaviors are ru le d over by w h a t people Only then can life call “ratified n a m e s ” dynasty, In n er C on fu cian ism and O uter L eg isla tio n as a U n iq ue O riental L egal C ulture Confucianism w as continually distorted to Chinese H istory says in 536 BC Ching Regretfully, a fte r h aving become an official a ss e rt doctrine the of r u le r s ’ H an H an d yn asty ’s King introduced the Book of law the interaction betw een th e superior and the In 513 liC, u n d e r Tan dy n asty ’s King order, a huge cauldron on which the inferior It only focused on th e duties of legislation was being obedient of th e inferior The concept criminals As tim e w en t by, a school in of th re e moral bonds m ay be shap ed by favor of rule by law emerged Rules by T u n g C h u ng -sh u a t t h a t t i m e [ l l , p g l ó] morality a n d law were two most popular The notion of loyalty, piety, a w o m a n s th re e obediences a n d four v irtu es were schools in th e A utum n a n d Spring Annals and W arring The s ta te s period Debates som etim es For betw eens scholars of those two schools exam ple, a female, before m arriage, was contributed to th e sh ap in g of legal forms of considered as to obey all h e r p a re n ts ’ the E a s te rn countries u n d e r the influence orders, for exam ple of C onfucianism authority seem ed abn o rm a lly to forget understood m a rry the one th a t C hinese carved culture was Chi’in used for dynasty h e r p a re n ts had selected for h e r w ithout followed th e school of th o u g h t in favor of freedom in love a n d m arriage After being rule by law From 350 BC, privatization was im plem ented, m arried , she should obey all her h u s b a n d ’s o rd e rs and w hen h er spouse is dead, she m u s t obey h e r son Since H an dynasty opened an e x am in atio n session in 14 BC, le a rn e rs only focused on learn ing by h e a rt for exam inations T hey more or less lost th e original c re ativ e n e ss in learning land the monopoly by the a risto c t w as abolished All people both worked a n d fought, which resulted in th e prosperity and power of Chi’in dy snasty 120 years later (227 BCE), w hen the first em p ero r of Chi-in dynasty unified th e whole country gradually On re a d in g th e w orks of H an Fei (280- b ecam e conservative, com placent and anti- 233 BC)- th e most typical rep resentativ e of lnnovative in both political and economic the rule-by-law school which were w ritten te rm s in prison w ith C onsequently, In C onfucianism p a llel w ith golden rules k eep ing the society in order, some r u ’es of C onfucianism w ere like hindrances k e ep in g the c o u n try behind th e re st of the world The key point here is th a t we VNU, Journal o f Science, Economic S - L u w , N J E , 2004 m en tal sufferings, more th a n two th o u s a n d s years later, one is am azed a t th e sh arp-w itted th o u g h t of which the in ta c t values are rem ained at present time Han Fei’s views are as follows: Pham Duy Nghia Law m u st be tra n s p a r e n t Only tr a n s p a r e n t law can b ring prosperous and p e a c e fu l tim es time on, a tre n d to combine both Confucianism a n d legislation to rule the country came into existence Also from [4 , p g ] « L aw m u st be strictly followed Law w h a t is used for th e public, p u n is h m e n t is u s e d to direct one’s behaviors, so th a t people follow rules w ith o u t uncertain ty Those who obey such ru le s a re rew arded white th o se who not are punished th e n on Confucianism h a s been deeply im bued in O rien tal legislation Confucianism does not deny and criticize b u t m akes light of h a r s h pu nish m en ts The society should be by morality organized a n d should be based on rule Self-education w ith the five basic vertues- ệ People of any position a n d n k are benevolence, righteousness, civility, treated equally before law Law does not knowledge and loyalty should be used as a side is principle to correct oneself, to m anage not one’s household, to rule th e country and w ith implemented, th e the rich Once to le n t law dare tjlerate, the b rave d a re not compete w ith pacify l;lW P u n is h m e n t and re w ard s a re not only Confucianism which have been adjusted far any given subjects Even a n aristo crat for centu ries now replace a major p a rt of can be the functions of law pu n ish ed and a boor can be th e world M oral rules of r e w a r d e d [3 , p g ] ệ U nlike “ratified n a m e ” theory of Six P rop osals to B rin g W ritten Law C loser to P e o p le’s In terests Confucianism which w as u sed to assu re The p rim ary objective of legislation is the relationship betw een classes, H a n Fei’s ‘n a n e form ation” th eo ry accidentally or purposefully aim ed a t elim in atin g social clashes A chievem ents should be accessed according to work types If achievem ents to serve people’s benefits, not the constitution In th a t spirit, the following six proposals should be ta k en into consideration fit cbeds a n d deeds fit words, th e re should F ir s tly , law is closer to people and is |ie i.wards O therw ise, th e re should be more effective w hen people willingly follow p u nsh m en ts rules B ut it is the case w hen law is close Although H an Fei’s books w ere highly appieciated in C hi’in D ynasty, after the eclipse of this dynasty, school favor of rule •>y law was overshadow ed by > n u c i a n i s m ’s school favor of rule by norility H an E m p eror Wu h a d to use egiilation to deal w ith domestic affairs ind use C onfucianism for diplomatic ones n O'der to keep society in order From th a t to th e ir needs, th e ir dem and as well as th e ir w ants On th e contrary, w hen law is a g ain st n a tu re , a g ain st people’s wish, it will be boycotted no m a tte r how h arsh, forceful and th re a te n in g p u n ish m en ts are used Then the illegal is common, the legal is exceptional Therefore, making law stric te r and more effective m eans b e tte r p resen ting people’s views and interests V' NU, Journal o f Science, Economics-Law, N„IE, 2004 Confucianism and the future o f the law in Vietnam The insufficiency, overlapping and organizations such as p a rty organisations contradiction of legal docum ents or the and tra d e union As the ruling part}, the lack of legal staff are ju s t only tem p orary V ietnam ese C om m un ist P a rty plays; < and the role in establishing and im plem enting law ineffectiveness The key is to bring the soul procedures T h a t people are rich 0)r poor of law n e a re r to people’s consciousness and and the country is powerful or n.)t IS interests It is necessary to rally 80 million mainly a ttrib u te d to th e P a rty ’s p-oicies V ietnam ese The superficial reason s people in for organizations P a rty ’s political cu m ents ^ rcj re p re se n tin g th e ir various in terests There resolutions are based on should be unions, associations, religions legislation, and o th e r socio-ecoiomic and p arties to promote people’s will —a policies respectively At th e sam e tiln* t i e suprem e will which conquers all forces of governm ent and o th e r s ta te bodies issue the state official legal directives to realize S e c o n d ly , law and law m easures should be redefined if people are viewed as root, the s ta te is viewed as tool not the oth er way round Law is not ju s t a set of rules set by the sta te b u t a reflection of people’s desires which are converted into laws The bodies who speak those desires and p re sen t a lot of unions should not be ju s t legislative but also juridical to form hone guidelines In o th e r words, V ietnanese law is mostly based on P a rty ’s idetlogy However, due to some technical consents in legislation, the tran sm issio n from deas into w ritten imperfect between legal th a t docum ents th e political i; H0 m isunderstaidir.g o rientatio n a n d legal norms still exists F o u r th ly , w hen b u sin essm en a?e organizations In modern time, rigid laws given more freedom to trade, they iurey have been grad ually replaced by soft laws will become a powerful force in the Sicieiy set up by lots of institutions Once realized who tries to gain control over ecoromi: by public bodies of power such kinds of cultural, a n d social life and rules and regulations become law Thus, control politics a n d legislation soon Tais g establish ing and im plem entin g law is no inevitable because bu sin essm en art aho longer th e sole b usiness of the state, it citizens, even some of th em are in th' leed should be th e common b usiness of all of creating n a tio n ’s prosperity Though people in th e country The s ta te ’s function trade-union oriinUd is to e n su re proper law e sta b lish m e n t and organizations’ activities, businessmen hy im plem entation p ressure on governm ent and legislatures T h i r d l y , a variety of people’s in terests in co m m un ity principles of life, family and villages’ ru le s as well as official legal docum ents of the locality should be well p resen ted by social in stitu tio n s V N U , Journal o f Science, Econom ic s - I m w \ and N J E , 2004 and interest- of Oune publicly or discreetly, they even t*y control law A typical example of tiis s th a t C hinese local courts h a d to uffcr from a g re a t p re ssu re caused by re.'ionil rulers as th e ir feud In adiitioi, Pham Duy Nghi a 32 b u s in e s s m e n pre getting b etter supposed to abolish such constitution u n d e r s ta n d in g of settin g rules as th eir violating rules T here is a need to set up own r i g h t and use it as a tool to respond to a d m in istrativ e bodies to tr e a t violations of m arktet changes a n d law ad ju stm en ts This institution s of power T h ere is nothing new p h e n o m e n o n is not a d eq u ately mentioned in this because more th a n two h un dred in V ie tn a m e s e law studies years N ot only law but also economic tra n s a c tio n s in the m a rk e t are affected by the r i g h t to set ru les a n d regulations of b u sin essm en The s ta te is not always a comrruander b u t som etim es a co u n terp art of b u sin e ssm e n T h ere h a s no longer bee subm issiveness but competitiveness ago, the W est realized th a t governm ent w as not God M uch longer before th e E a st th e y know such in stitu tio ns to limit a n d balance power should be set up Regretfully, two centuries later, V ietnam ese is still at pains to find th e '.vay to set up and use such in stitu tio ns effectively betw een legal n orm s a n d b u sin essm en ’s S i x t h l y , it is high tim e th e right to in d e p en d e n t norms This factor is worth is create rules of the judge was discussed The legal system in V ietnam h a s followed im plem ented Although th e s tate is not the legal th o u g h t of th e F o rm er Soviet to help b u sin essm en to realize, Union, liy now, the N ational Assembly has considering su pposed access w hen and law allocate reform b u sin ess should have effective protect th e public’s abuses of u n e q u al it the rig h t to constitute laws and the right to to explain laws, in theory, is held by The against S tanding Com m ittee of National Assembly, yet in reality, it is in the hand risks, interv entio n in te re sts inform ation and of th- competitive advantages governm ent and adm inistrative institutions V ietnam ese courts only have F i f t h l y , not only elected bodies but also judiciary org an ization s at all level, eicher national or local ones have big power to set up governmental circulars or or rules Sometimes, m in isterial lette rs or the rig ht to pply and im p lem ent rules, b ut not to create or explain them The practice to view legal procedures came into being w hen the country w as u n d e r French rule, according to which Inferior Court decisions by People’s should all are of consider th e Inferior C ourt’s Committee of high decisions as one kind of law Scholars also practicality and have b e tte r effects on base them selves on legal procedures to level which mainly contain general principles build up theoretical studies These practices were abolished in V ietnam in the T.iis is an inevitable a n d unchangeable late 1950s V ietnam ese courts now only fact The th in g is we should supervise the base them selves on legal documents, they rights not correlate the ju d g m e n t of previous every individual r a th e r th a n to set up ru le s to any Acts prevent corruption This gives rise to establishing cases the institutions to protect th e law which is V N U Journal o f Sc ienc e, Economics-Imw, N„IE, 2004 C onfucianism and the future o f the law in Vietnam N evertheless, C ourt’s s ta te of p role ta ria t dictatorship .Judging guidelines which have been sum m ed up for objective tr u th procedures h a s been from experience are more, or less worth replaced by equal in s titu te proceedings referring to in judging procedures In th a t b etw een the prosecutor and the lawyer sense, to a c ertain extent, it h a s some Among innovational th o u g h ts which have impacts judge been swept away by globalization storm indepen dently are realized, th a t judges should be given more power to set up th e re a pp ears fam iliar Confucianism Confucianism which has secured a firm rules, apply, com m ent as well as explain hold laws certainly If to the a d ju st the S u p rem e 33 Courts some which p a rtic u la r cases on V ietnam ese’s will lead consciousness us to peace and should be considered It is reasonable if deliberation to well organize a civil service the function to explain law is g n te d to system a n d legislation to serve its people the jurisdictional better W esterners hav e ta k e n a lot of in stitu tio n s can judge w h a t deeds are legal m e asu re s to m ake au th o rities subm it to or illegal Besides, outside th e Court, the people’s will Such m easu res should be judge soon learned like the way we should soon Court, b ecau se should only consider justice and theoretical studies as a sub sidiary source le a rn how to m a ster all IT instrum ents of his job W hen th e re are no rules and N evertheless, no m tte r how good such reg ulatio ns concerned, he should judge a m e asu re s are, nothing can replace the case basing on justice an d the right, not living th o u g h t and ideology We can not respectfully su b m it th e record to his senior use w h a t th e W esterners respect, hate or an d w ait for the judgm ent This kind of d read to replace national consciousness th o u g h t stem m ed from the concept th a t L earn in g tKe superficial will ju s t increase law w ritten people’s xenophilia, widen the gap betweer docum ents, th e re exist law of th e right generations, the sense of nationalism wil and law of conscience The judge w ith his fall ju d g m e n t is not like th e official an d his country The s tate a n d legislation of tae a d m in is tra tiv e decision He should bring V ietnam ese law of conscience and th e rig h t close to life explained c re atin g law (Latin root: juris-law; dicta- ideology -That announce) borrowed does not only contain C o n clu sio n People’s a w are n e ss of civic righ ts has into decadence, should on th e is th u s be weaken establishec of Vietnamese W estern civilization Ù to complement to encourage people prom ote quintessence a.ic basis shortcomings, to the Vietnamese th e ir V ietnam ese CUĨ civil m tio ta ierv.ee led to jurisdictional reforms, which can system and legislation can not s ta r t with c b ring changes to old schools of th e state borrowed W estern school of th o u g it tu: a n d legislation A s ta te of people, by people proceed w h a t we have had for thousands o' a n d for people is on the way to replace the years V N U , Journal o f Science, Econom ic S -L aw , N ()IE, 2004 34 Pham Duy Nghia REFERENCES Đào Duy Anh, Việt N am Văn hóa s Cương, NXB Quan Hải Tùng, Huế, 1938 Hà Ngọc Xuyên, Không đại tinh hoa tốt y ếu , Nhà Văn hóa, Phú quốc khanh đặc trách văn hóa xuất bản, Sài Gòn, 1969 Hàn Phi, Hàn.Phi Tử, Bản dịch Phan Ngọc, NXB Vãn học, Hà Nội, 1992 Hàn Phi, Thiên Ngũ Đố, Bản dịch tài liệu Vũ Văn Mẫu, Pháp luật diễn giảng Luật khoa đại học, Sài Gòn, 1975 Nguyễn Đăng Dung, Một s ố vấn đề hiến pháp máy nhà nước, NXB Giao thông vận tải, Hà Nội, 2001 Nguyễn Đăng Thục, Lịch sử tư tưởng Việt N a m , Tập 1, 2, Bộ Văn hóa, Sài Gòn, 1967 Nguyễn Hiến Lê, Nho giáo: Một triết lí trị, tác giả tự xuất bản, Sài Gòn, 1958 Nguyễn Kim Sơn, Nho giáo tương lai văn hóa Việt Nam, Tạp chí văn hóa nghệ th u ậ t, 2/ 2003 Nguyễn Khắc Viện, Bàn đạo Nho, NXB Trẻ, TP Hồ Chí Minh, 1998, nguyên tác: “Confucianisme et M arxism e au Vietnam ’ LA Pensee (1962) N 0.10, dịch Việt ngữ Đào Hùng Trần Văn Quý 10 Phan Đại Doãn, Một s ố vấn đề Nho giáo Việt N a m , NXB Chính trị Quốc gia, Hà Nội, 1998 11 Phan Ngọc, Bản sắc văn hóa Việt N a m , NXB Văn hóa Thơng tin, Hà Nội, 1998 12 Phan Ngọc, Một cách tiếp cận văn hóa, NXB Thanh niên, Hà Nội, 2000 13 Phan Đình Hượu, Đến đại từ truyền thơng, NXB Văn hóa Thơng tin, Hà Nội, 1995 14 Trần Trọng Kim, Nho giáo: Đại cương triết học Trung Hoa, NXB Tân Việt, Sài Gòn, 1971 NXB TP Hồ Chí Minh tái bản, 1992; NXB Văn hóa Thơng tin tái 2001 15 Trần Văn Giàu, Triết học tư tưởng, NXB TP Hồ Chí Minh,1988, p 126 16 Vũ Khiêu, Nho giáo p h t triển Việt N a m , NXB Khoa học Xã hội, Hà Nội, 1997 TẠP CHÍ KHOA HỌC ĐHQGHN, KINH TỂ - LUẬT, s ố 1E, 2004 NHO GIÁO TRONG TƯƠNG LAI PHÁP LUẬT VIỆT NAM TS Phạm D uy N ghĩa Khoa L uật , Đại học Quốc gia Hà Nội Bài viêt dự định địn h nghĩa lại giá trị Đạo Khổng p h t triể n k hái n:ệm pháp lu ậ t Việt Nam Là tậ p hơp quy tắc đạo đức chi phổi n h ữ n g h n h vi người, Đạo Khổng th a y t h ế trợ giúp quy ch uẩn pháp lu ậ t tro n g việc trì t r ậ t tự xã hội Dựa vào cơng trìn h n gh iên cứu này, báo đưa sáu vấn đề đề x u ấ t giúp đưa văn pháp lu ậ t Việt N am gần vối quyền lợi người dân VNU, Journal o f Science, Econom ics-Law, N„IE, 2004 ... constitute laws and the right to to explain laws, in theory, is held by The against S tanding Com m ittee of National Assembly, yet in reality, it is in the hand risks, interv entio n in te re sts inform... f the law in Vietnam The insufficiency, overlapping and organizations such as p a rty organisations contradiction of legal docum ents or the and tra d e union As the ruling part}, the lack of. .. < and the role in establishing and im plem enting law ineffectiveness The key is to bring the soul procedures T h a t people are rich 0)r poor of law n e a re r to people’s consciousness and and