Schools of jurisprudence and influences on jurisprudence in Vietnam

This approach is in line with the reality because of the fact when applies the same legal standard, the actual effect (of that standard) may depend on people's awareness and con[r]

SCHOOLS OF JURISPRUDENCE AND INFLUENCES ON JURISPRUDENCE IN VIETNAM

Prof.Dr Pham Hong Thai – LLM Nguyen Anh Duc VNU, School of Law

Abstract: The article summaries several schools of law over the world and gives some

comments about the influence of these schools as well as the Soviet Jurisprudence on Vietnamese legal theory and laws, especially Vietnamese Constitutional laws The author assumes that the current legal theory and laws of Vietnam reflect the transplantation of many different schools of legal science That derives partly from the historical context but is also suitable for small countries like Vietnam in the context of global integration today The author will try to explain the objective and subjective historical factors that affect these developments On that basis, the author will identify some of the challenges and demands for innovating legal science in accordance with the current context in Vietnam

Introduction

In ideological history, there are many different schools of law, but each school can only reflect different aspects of the law - a complex polyhedron phenomenon However, each school has certain impacts on the laws and legal life of the nations time by time In other words, the existence of different schools of legal science also aims to serve people That is similar to President Ho Chi Minh's opinion: ―For survival as well as the purpose of life,

human beings create and invent language, writing, morality, law, science, religion, literature, art, and other tools for daily activities of wearing, eating, living and using methods‖533 Therefore, in perception and practice, we should not absolutely focus on any scientific ideology It is necessary to find the rationality of each viewpoint and apply creatively to serve human social life in specific circumstances

1 Overview of schools of laws over the world 1.1 The Natural Law School of Jurisprudence

The Natural Law School of Jurisprudence534 was formed very early in human history, even from ancient Greek and Roman times Aristotle (384-332 BC) argued that the rule of law must be a deductive reflection from the harmony of the natural order Cicéron (106-43 BC) in his ―De republica‖, had tried to prove that the human-created laws are not higher than immutable and eternal laws of nature Many ancient Roman jurists also considered the rule of law as justice associated with human nature It means that the social characteristic of human cannot be separated from the natural characteristic of human and the natural characteristic of mankind determines the social characteristic of human

On the basis of philosophies and ideologies of ancient times about natural laws, in the West in the XVII-XVIII century formed the school of natural law, which delegates were: H Grotius, T Hobbs, J Locke, S.L Voltaire, S L Mongtesquieu, J.J Rousseau, A.N Radusev and many other scholars535 The idea of natural laws became the dominant thought in European political-legal thought at that time The school of natural laws comes from the consideration that social life exists two systems of rule of law: natural laws and Actual law In which natural laws are considered to be standards and justice which originates from the natural characteristic of human beings, formed from the principles of morality Therefore, it is fair and cannot be restricted by the state, it's also popular in every age and every nation Natural laws exist forever and have not been changed as eternal nature Base on this theory, the formed acts (reflect through the basic ideas, moral principles, and legal principles) consider rights and freedom such as equality, ownership, safety, and anti-oppression, etc are inherent natural rights that cannot be deprived In other words, every state must protect these human rights On the other hand, actual laws are officially recognized rules, existing in

533

Ho Chi Minh, Collection National Political Publishing House HN 2002 Vol 3, p 434

534

See: Theory of State and Law ―legal book‖ Publishing House M 1974, p 119 – 138; 138- 215 (Russian);N.I Matuzova, Theory of State and Law Iurixt Publishing House Moscow 2001.p.130 – 145 (Russian)

535See: A G Kha bibulina, V.V.Lazarev, Scientific activities, Theory of State and Law (third edition) „Pho Rum – Infra‖

different states and expressed in acts or other legal documents of state agencies, including customs approved by the state The law which is set by the state must be consistent with the natural laws which are inherent and supreme in society Therefore, the state along with its structures must comply with natural laws Besides that, compliance with natural laws is to obey the rules of natural and social human life

1.2 The Historical School of Jurisprudence

The Historical School of Jurisprudence536 formed around the first thirty years of the nineteenth century in Germany, delegates of this school - GF Guxta, Cavin, Phuxta, etc They have denied the school of natural law and regarded it as the reactionary which borned the French Revolution They deny the possibility of the common rights of all peoples and argue that the German people, as well as other peoples, have their own rights The rights of one nation are different from the rights of other nations because of history has formed it out The rights of each nation are the expression of their ―common sense‖ and ―common belief‖, as a result of long history and as ―mother's milk‖ transmitted from generations

Those who follow this school view the adjustment of the superstructure is the deciding role in the formation of the law In which, the formation of law is similar to the formation of game rules which are gradually established by practical basis Therefore, acts are not the only source and are not the basis of the law, but traditional customs That argument was explained by the situation that many people did not know the rules of the law, but knowing very well about the already existed order of social life Such explanation, in a certain extent, is reasonable because the specific person may not know the rules of the state, but all their behaviors are adjusted due to the traditional rules, good custom, moral rules In many cases, their behaviors in accordance with the state law However, if too emphasizing this view today, it is easy to lead to ―closure‖ in awareness, and difficult to integrate into the open world

1.3 The Normative Jurisprudence (School of Legal Positivism)

Under the influence of I Kant philosophy, the Normative School of Jurisprudence537 appeared in the nineteenth century as a neutral theory which integrated both theories of natural laws (which recognize laws derived from morality) and the actual laws (which is actually issued or acknowledged by the state) This school considers laws are the common compulsory requirements of the will and not influenced by any external factors

The appearance of the normative school has contributed to consolidating legislation, state order and limiting arbitrariness of judges and administrative agencies We argue that the school of legal positivism has formed the concept ―the rule of law state‖ and ideology of state power limited by law However, by the end of the nineteenth century and the first twenty years of the twentieth century, the normative school had its radical changes G Kenzen and his supporters consider laws are legal norms separated from the political, economic and social

536

N.I Matuzova, Theory of State and Law Iurixt Publishing House Moscow 2001.p.130 – 145 (Russian)

537 See: Theory of State and Law ―legal book‖ Publishing House M 1974, p 119 – 138; 138- 215 (Russian).; N.I Matuzova,

life This school base on a fact that the laws did not appear and develop because of the actual social life, but because of the official regulations of the state In which, each legal rule is effective for society and their legal effect has a hierarchy like a pyramid, depending on the position of the agency that issued it

Against the natural law theories, G Kenzen asserts that the existence of laws does not rely on anything else, other than relying on the state The compulsory of the laws does not originate from moral but from state authority G Kenzen considered the laws to be ―the overall legal norms of the need for abstraction‖ This view also has its limitations that if emphasizing the subjective role of the state in enacting laws is also easy to lead to arbitrary, voluntarist Sometimes because of the ―cruel‖ of the authorities, the whole nation may be pushed into a difficult situation in which freedom and democracy are limited, human rights and civil rights are easily violated

1.4 The Sociological School of Jurisprudence

The Sociological School of Jurisprudence538 is the precursor to the ―School of liberal law‖, fighting for ―people's living law‖ This school argues that law is not based on acts, but on the judgments of the judge The Sociological School is a fundamental tendency of legal science in many countries around the world This is opposite of the school which considers laws to be the result of abstraction This school appeared around the first thirty years of the twentieth century, in Europe, then developed in the United States The delegates of this school are: D.j Diu, P Paund, D P Penk, Levilin consider administrative decisions, decisions and judgments of judges, custom, legal consciousness of judges, decisions of officials, legal relations, and legal norms are components of the ―law‖ concept They all affect human behavior ―Law is an activity whereby interventions can be carried out on other activities‖ The Sociological School has a very profound effect on the current legal life in the current European-American countries, where the practice of legal precedent and customary law is very popular These forms are also the sources of the law besides legal documents

1.5 The Marxism School of Jurisprudence (Historical Dialectical Materialism School)

The appearance of this school is often attributed with the names of K Marx and F Engels, so sometimes people forget that there were thinkers like L.H Morgan and other people had discussed on the basics issues of the historical legal materialism539

The historical legal materialism school is based on dialectical materialist philosophy, which considers laws to be a part of superstructure based on socio-economic infrastructure The laws is subject to the decisive impact of economic conditions, in contrast, the law affects socio-economic relations K Marx wrote, ―In any age, the king must obey the economic

538

See: Theory of State and Law ―legal book‖ Publishing House M 1974, p 119 – 138; 138- 215 (Russian); N.I Matuzova, Theory of State and Law Iurixt Publishing House Moscow 2001.p.130 – 145 (Russian)

539See: A G Kha bibulina, V.V.Lazarev, Scientific activities, Theory of State and Law (third edition) „Pho Rum – Infra‖

conditions, the king can not order to economic conditions The nature of the political or civil legal regime is recording the power of economic relations‖540

K Marx and F Engels said that under such conditions, dominant individuals need to constitutionalize their power in the form of a state, they need to make their will, which is affected by these relations, expressed in the form of state power, in the form of acts The expression and content of laws always reflect the relations of this class The affirmation of the class nature of the law, in essence is the recognition of the law from the political and sociological aspects of the law

The Marxist school considers the law always attached to the state, issued and ensured by the state, the law expresses the will of the dominant class The content and form of the law are results of economic conditions, survival conditions of the ruling class In comparing the Marxist school to the other schools above, we can see similarities and differences The Marxist school is the successor of the School of Legal Positivism, the school of historical materialism, but fundamentally different at the point that law is not the product of abstract thinking or human will Its birth and development are due to material conditions, economic conditions and changes in conditions and economic relations will lead to changes in the law

The Marxist legal school has a profound effect on the development of awareness of the law, which is an orthodox school introduced into Vietnamese education, influencing approaches, solving problems of laws, state and other social phenomena However, it must be recognized that in addition to the economic base, the law is also directly or indirectly affected by many other factors: politics, ethics, national traditions, ethnicity, natural conditions, international relations, the development of science and technology

1.6 Soviet Jurisprudence as a typical model of Socialist Laws

The Soviet Jurisprudence in Soviet Union541 after Great Russian October Revolution 1917 is exactly embodiment of Socialist Laws which was mainly formed base on Marxism on state and laws, and partly affected by different Continental European Schools of Jurisprudence – especially the normative school of jurisprudence During the end of the 1930s to early of 1940s, famous scientists/jurist in Russia such as M.A Apgianov, M.M Agarkov, C.A Golunxky, N.N Nolianxky, M.C Xtrogovich, N.G Alekxanđrov, C.N Bratuxo and many others, by all their efforts, had tried to prove the law is a system of legal norms that exists in the state Experiencing many ups and downs but awareness of legal norms is still a value, an achievement of the Soviet Jurisprudence Although this school also has certain limitations which deeply emphasis on class nature of the law Beside that reflection of the School of Legal Positivism, the Soviet Jurisprudence during the end of the 1930s to 1950s was also affected by the sociological school of jurisprudence In this point of view,

540

K Marx, The misery of philosophy, Su That publishing house, HaNoi, 1971,p.93

541

C.Ph.Ketrekian and A.A Piontkopxky opined that the definition of law is including legal

norms and legal relationship In addition, IA Ph Mikolenko also added legal consciousness

into the definition of law

By this extension, the jurists try to seek justice and fairness which are not only reflected in the rules and regulations (the static state of the law) but also seek justice and fairness in the legal phenomena (law in action) This approach is in line with the reality because of the fact when applies the same legal standard, the actual effect (of that standard) may depend on people's awareness and consciousness in different contexts Therefore, the law (in theory) may be the norm, the embodiment of justice and fairness, but it is difficult to achieve real justice and fairness when people apply to their life Practically justice and fairness are expressed mostly in the law enforcement of state agencies or officials

At the end of the 1960s and early 1970s, in the Soviet Union, there were lively debates about the law In the ―Round-table Conference‖ organized by the ―Journal of Soviet State and Law‖, experts had not only couldn't get unification awareness about law meaning but also have confirmed that they need further research to identify the truth and the legal opinions need to be closer together

In Russia today, the theoretical issues of law and legal phenomena still inherit, develop the former Soviet Jurisprudence base on the foundation of the school of legal positivism However, the concept of law has been adding elements other than the legal norms such as legal consciousness, legal relations, and law applicating documents542

Besides the above-mentioned popular schools, there are many other schools such as the psychological school of jurisprudence, the Law and Economics school

2 Influence of schools of law as well as the Soviet jurisprudence on Vietnamese jurisprudence and laws

Legal science in Vietnam is a slow-growing science compared to other sciences and influenced by many different schools of law in the world, mainly from Western countries, by different ways and mechanisms The influence may express in three aspects: ―the first one is

the direct imposition of the influential party on the affected party; the second is active reception of the receiving party; the third one is influenced by natural attraction as people often attract each other by their own values‖543 For example, during the period of under the French colonization, Vietnamese actual law and legal science were influenced by French law and legal ideology through imposing mechanism: ―French law has ―followed‖ the invading

and colonial forces‖ After getting our own independence, there are the active reception

advanced legal thoughts (by President Ho Chi Minh in the Independent Declaration of

542

See: N.I Matuzova, Theory of State and Law Iurixt Publishing House Moscow 2001.p.130 – 145 (Russian)

543 Arnaud de raulin, Jean –paul pasrorel, Trinh Quoc Toan, Nguyen Hoang Anh, Influence of French legal tradition to

Vietnam or the Consitution 1946) as well as natural attraction through the ―cooperation in the

framework of the legal support from the French government‖544

2.1 Influence of the natural law school

The school of natural law has influenced, in a certain extent, to the ideology of Vietnamese constitutional founders, to constitutional thought of President Ho Chi Minh It was not a coincidence that President Ho Chi Minh cited the views of Thomas Jefferson - the great Founding Father in the history of the American people's liberation struggle - in the Independent Declaration of Vietnam: ―all men are created equal, that they are endowed by

their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness‖545 Base on the natural right of human, President Ho Chi Minh had developed, generalized to the right of people: ―In broader explanation, that means: all the

peoples of the world are created equal, each people has rights to Life, Happiness and Liberty‖546 This is the great revolutionary creation of President Ho Chi Minh on natural law, human rights In which, the natural rights and human rights of individuals have been upgraded to their natural and human rights of people It reflects one of the key perspectives of President Ho Chi Minh and Vietnamese Communist Party that without the natural rights and human rights of the people, it is impossible to have the natural and human rights of individuals In other words, the natural rights and human rights of each individual depending on the natural and human rights of the people and nation In an enslaved people, the members of that society are no different from slaves

On the basis of those philosophies of President Ho Chi Minh, it is possible to find manifestations of the ideology on natural rights and human rights in the Vietnamese Constitution 1946, 1959 and 1980, especially expressed in the chapters on basic rights and obligation of citizens Remarkably, the Constitution 1992 (amended and supplemented in 2001), for the first time, officially used the term ―human rights‖ The Constitution stipulates: ―In the Socialist Republic of Vietnam, human rights on political, civil, economic, cultural and

social aspects are respected, expressed in citizen's rights and regulated in the Constitution and law‖547 The Vietnamese Constitution in 2013 has a chapter on human rights, basic rights and obligations of citizens, which affirms: ―In the Socialist Republic of Vietnam, political,

civic, economic, cultural and social human rights and citizen‘s rights are recognized, respected, protected, and guaranteed in concordance with the Constitution and the law Human rights and citizen‘s rights shall only be restricted in imperative circumstances for the reasons of national defense, national security, social order and security, social morality, and the health of the community‖548 This is an important development in Vietnam's constitutional awareness of human rights, citizen's rights That is a long-term result of the process of

544 Ibid, p 17 – 19 545

The Independent Declaration of Vietnam 1945 and Constitutions of Vietnam, National Political Publishing House, HN, 2012, p

546

Ibid, p.1

547 Art.50 Vietnam Constitution 1992 548

acquiring, inheriting and developing the ideologies on natural law and thoughts on human rights of many generations of scientists, politicians during the late twentieth century and the early 21st century - those who are directly involved in the process of spreading ideas or directly involved in the drafting of the Constitution 2013 Thanks to the impact of the natural law school and the thoughts of human rights, a new legal specialization has been formed in Vietnam - Law on human rights

The provisions of the 2013 Constitution of Vietnam, opening a new trend of researching on human rights by the human rights-based approach Therefore, in conduction of scientific publications on human rights, state activities, laws, and legal phenomena, Vietnamese scientists have, in a certain extent, approach from natural human rights perspective or human rights-based approach549

2.2 Influence of Soviet Jurisprudence on Vietnamese Jurisprudence

Legal theories in Vietnam were deeply influenced by the normative school of jurisprudence and as a direct succession from the theories from former Soviet law which was influenced by certain schools of law in continental European countries

The influence of the Soviet legal theories on legal science in Vietnam expressed the historicity quite clear For a long time, in Vietnam, there were not enough conditions and prerequisites for the formation and development of legal science In order to form a science in general and the legal science in particular, we assume that should have the following conditions and premises: The needs of human social life; existence of experts on theory of law; Availability of legal training institutions; There are space to publish scientific works that help to form a scientific school These are necessary and sufficient conditions to form and develop a specialization science In fact, Vietnam did not have all the conditions and premises for a long time That does not mean in Vietnamese history (since ancient times) we not have anyone who thought about the law However, when looking back the entire history of Vietnamese Monarchies, the predecessors seem to did not leave legal scientific works for posterity, although they had laws, such as the ―Hong Duc Code‖550

Vietnamese thinkers at the end of the nineteenth century and the early twentieth century, although acquiring French legal science and philosophy but had little impact on Vietnamese legal science

Since 1930, the Indochina Communist Party was established, leading Vietnamese people to make a revolution in August 1945 that has overthrown the feudal colonial regime, built the Democratic Republic of Vietnam state However, since that time Vietnamese people had to concentrate on the resistance against the aggression of French colonialism (1945 - 1954) After 1954 the North of Vietnam was completely liberated, the South of Vietnam was

549See: Pham Hong Thai, Vietnamese Thoughts on Human Rights, National Political Publishing House, HN; 2016; Nguyen

Dang Dung, Dang Minh Tuan, Vu Cong Giao, Textbook Vietnamese Constitutional Law, VNU publishing house, HN, 2018; Nguyen Thi Que Anh, Vu Cong Giao, Nguyen Hoang Anh, Theories, Models, Approaches on State Governance and anti-corruption, Hong Duc publishing house, HN, 2018, other publications

550 Hong Duc Code is the Code enacted under the Le Dynasty (1428 – 1789), Justice Publishing House translates and

still invaded by the American imperialists and under the ruling of the Republic of Vietnam government - a puppet government built by the American empire The Vietnamese people entered the new era with two basic tasks: building socialism in the North, and fighting for the liberation of the South, got the unification of the whole country During this period, all social resources were focused on the resistance against the US to save the country, with the slogans ―all for the Southern compatriots‖ or ―rice will not lack any pound, military will not lack any

soldier‖ In the aim to ensure the unity, focus on serving the resistance, so the national

governance is mainly based on the directions and resolutions of the Vietnamese Communist Party and state management is mainly by administrative orders and decisions That is the reason for the lack of conditions and premise for law development

In 1975, the South was completely liberated, the country was united, and entered a new stage: building socialism nationwide and protecting the Fatherland To meet the requirements of state and society life, the idea of social management by law gradually formed In 1976, the Faculty of Law under the Hanoi General University (currently Vietnam National University, Hanoi) was established, with the task of educating law bachelor degree Although there have been a number of legal training schools such as School of Court Officials, School of Procuracy Officers, but in fact are schools training judicial officers, that is not universities By 1977, the Legal University was established on the basis of consolidating the Faculty of Law of Vietnam General Universities with the Legal College However, lectures at those institutions and other legal training institutions were also built on the philosophies of Soviet jurisprudence, which was formed, received through lectures of Soviet experts or lecturers trained in the Soviet Union and other socialist countries Although the first training courses still had the participation of some French-trained experts before 1945, the impression seemed very faint Besides, the educating of specialized jurisprudence at the doctoral degree (Theory

on rule of law state – currently replaced by: Theory and history of the state and the law) was

first established at the Ho Chi Minh National Academy of Politics, where most scientists are primarily educated and trained in the Soviet Union, or received Soviet theoretical knowledge in different ways Therefore, the theories of Soviet jurisprudence were also propagated through this system and contributed to forming a contingent of scientists who are imbued with Soviet legal theories In that historical context, any legal theory which is not Soviet model or socialist-style was only mentioned to be criticized or be regarded as ―capitalist‖ That situation was exactly determined by ideology The world for a long time is divided into socialist and capitalist factions Therefore, Soviet legal science affecting the development of Vietnamese jurisprudence is also inevitable historicity

The influent way of Soviet jurisprudence on Vietnamese jurisprudence is mainly by the aforementioned paths The direct effects of Soviet jurisprudence on Vietnamese jurisprudence can be illustrated as:

the Soviet model, (2) the learning and teaching methodology is similar to Soviet-style Although there are certain changes in the program, content, training methods to suit new requirements but not change the core principles

Secondly, the textbook of the subjects is mainly compiled in the late 1980s and early of 1990s, mainly based on the Soviet textbooks Therefore, the reading materials compilation is also heavily influenced by the way of compiling the Soviet textbook Characteristically, the textbook often focuses on solving theoretical issues about the phenomena that are interpreted and generalized into concepts and definitions Today, many textbooks have been revised, supplemented and updated with new knowledge, but the basic contents have not changed and are still deeply focus on theoretical issues, little attention to the actual situations and solving problems in specific situations This makes learners lack practical knowledge after graduating from university For example, the textbook for the subject ―Theory of State and Law‖551

under the bachelor's curriculum – a basic subject, foundation to compile textbooks for legal specializations - still maintain the structure of chapters, sections and contents are similar to the textbook ―Theory of State and Law‖552

in the former Soviet Union, Russia nowadays In particular, the basic concepts of law and legal phenomena such as definition of laws; attributes or characteristics of laws; origins, roles, nature, functions, legal types, legal sources; legal norms, structure of legal norms; legal system; legal behaviors; violating the law; legal liability; legal order, legal relations; legal adjustment mechanism; legal consciousness; implementing laws, legality and many other concepts were built base on Soviet theoretical knowledge Although the authors have different ways of presenting, expressing and supplementing some new theories and results of new research on the state and the law

The theoretical issues of specialized legal science also have many imprints of Soviet theory, expressed in the textbooks of the legal specializations, especially the branches of public law such as the Vietnam Administrative Laws553, also have structure of chapters and sections of the textbook and some concepts (administrative law branch, objects and adjustment methodologies of administrative law, structure of administrative law, administrative legal norms, administrative law relations, subjects of administrative law, subjects of administrative law relations, administrative procedures, administrative violations, administrative handling measures, ensuring legality, or supervising public administration and many other issues) are similar to the textbook of former Soviet Administrative Law and Russia nowadays554, although there are additional new content suitable for current conditions in Vietnam Theoretical issues in other legal textbooks such as Constitutional Law, Criminal Law are also influenced by Soviet science in the same way

551

See: Hoang Thi Kim Que, textbook Theory of State and Law, VNU publishing house, HN, 2018; Nguyen Minh Doan, textbook Theory of State and Law, National Political Publishing House, HN, 2010; Dinh Van Mau Pham Hong Thai, Theory of State and Law, Transport Publishing House, HN, 2009 and many other textbooks

552

See: Theory of State and Law,‖legal book‖ Publishing House Makova 1974; Theory of State and Law Iurixt Publishing House Moscow 2001

553

See: Nguyen Cuu Viet, textbook Vietnamese Administrative Law, VNU publishing house, 2013; Pham Hong Thai, Nguyen Thi Minh Ha, textbook Vietnamese Administrative Law, VNU publishing house 2018

554

Today, legal science in Vietnam is quite developed, many educating and training institutions have the task of training legal experts at the master and doctoral levels, the research topics are diverse, but also mainly are application topics, very few basic research projects Therefore, the main issues of law theory and the legal phenomenon still stop at reaffirming the concepts already in the textbook at the university level Sometimes, there are certain modifications and additions to the characteristics of the law in each field, so the theoretical issues still stop at a low level Therefore, it is difficult to argue that in Vietnam, there are established schools of legal science

Knowledge about Soviet laws affects not only legal science but also actual Vietnamese laws First of all, the Constitution of Vietnam, starting from 1959, 1980, 1992 (amended and supplemented in 2001) and the 2013 Constitution is still influenced by Soviet law science on the Constitution The influence is expressed in the following basic points:

Firstly, on the scope and subject regulated by the Constitution According to the model of the Soviet Constitution, Vietnamese Constitutions focus on adjusting quite specifically about political regime (institutions that constitute the political system); economic regime; sociocultural regime; national defence; on basic rights and obligations of citizens (the Constitution 2013 has changed chapter 2: Human rights, basic rights and obligations of citizens); on the organization of the state-organized system from central to local levels The constitution of most other countries often does not follow specific adjustments such as the Soviet Constitution and the Vietnamese Constitution

Secondly, regarding the organization of state power, all Vietnamese Constitutions are going towards the centralized power on the National Assembly and People's Councils at all levels The representative of the local territorial communities are all state agencies, not the agencies that have the right to 'autonomy', and the local administrative agencies are also called administrative agencies - the executive bodies of the people representative organizations Although the Constitution 1992 and 2013 have certain changes in the viewpoint of organizing the structure of state power ―the state power is unified, has the assignment, coordination, and control among state agencies in the implementation of legislative, executive and judicial powers‖555

, but this little change has not yet been concretized and realization in the laws of the state organization, or the laws on state management in the fields of the economy that have regulations on relationships between central and local governments

Most remarkably, Article of the Vietnamese Constitution 1980 in stipulates the leadership of the Vietnamese Communist Party This seems to be a copy from Article of the Soviet Constitution 1977 As a result, the Constitution 1992 and 2013 still maintain in this regulation, although there are amendments and supplements to the content of the Party's leadership The Constitution 1959 only mentioned to the Party's leadership in the preamble in

555

a general way In addition, it is possible to invoke many similar regulations between the Vietnamese Constitution 1980 and the Soviet Constitution in 1977

3 Challenges and needs for innovation in legal science in accordance with current conditions in Vietnam

Vietnamese jurisprudence is facing a big challenge:

Firstly, the change of Vietnam's political, economic and social life In the past, Vietnam (base on the view of socialism) did not recognize private ownership of means of production, now Vietnam has affirmed ―Vietnam's economy is a socialist-oriented market economy with many ownership forms, many economic components; the state economy plays a leading role The entities belonging to economic sectors are equal, cooperating and competing under the law The State encourages and creates conditions for entrepreneurs, enterprises, individuals and organizations to invest, produce and trade; sustainable development of economic sectors, contributing to building the country‖556

In the socialist-oriented market economy, the existence of many forms of ownership, economic components, equality between entities of all economic sectors creat many new social relations which force the state to make changes in policies and laws to solve a series of new arising problems in the state and society life, aiming to serve the development of the socio-economy From the development of the economy, a series of legal phenomena have emerged, such as in the field of public administration, the emergence of ―public-private cooperation contracts‖ - contracts signed between state and private organizations of all economic sectors (that those organizations provide public services to society), or when higher-level state agencies transfer their work to lower-level state agencies often by contracts, in many countries called ―administrative contracts‖557

and consider these contracts as „source‖ of law558

, In the United States, it is called outsourcing contract, and in Vietnam, it is not considered accordantly Or in criminal matters, non-traditional security issues have become a big problem in the state, society, international life, a series of new crimes such as high-tech crimes, etc have appeared that also need to be concerned The changes of the 4th industrial revolution to all aspects of the state, society, domestic relations in the country, regional and international relations have also changed and many new issues need to be adjusted by law That also requires many theoretical issues need to be studied to amend such as legal subjects, legal relations, legal liabilities, etc

Second, the renewal of jurists This is also not a simple issue, requiring self-renewal and re-aware of the theoretical issues of the law and the legal phenomena that we have transplanted into our legal system Vietnamese scientists need to realize and respond honestly to the questions: whether our perceptions of the law, the phenomena of laws are still accordant in the conditions of the 21st century? If it is appropriate, how to develop them? The fact that our life has philosophies or the theory was the truth, but no longer a truth today,

556

Art 51 Vietnam Constitution 2013

557

See: Panthéon – Assas and Gilees Dumont: French Administrative Law, Justice Publishing House, HN, 2007, p 423 – 431; Đ N Bakhrắc, Russian Administrative Law, EKXMO publishing house, Moscow, 2010, p 343 – 348

558

unfortunately, people are not always fully aware of this On the contrary, there are scientists who not want to admit existing legal arguments which being taught at training institutions in Vietnam Both of these trends have a certain risk, either inhibiting the development of science, or just a ―reproduction‖ That situation requires the smart choice of scientists to get new knowledge as well as find out the operative rules of legal phenomena and formulate legal theories both in accordance with Vietnamese legal culture and learned the quintessence of humanity That may help to prevent the ―conflicts‖ between generations of jurists

Thirdly, jurisprudence is a scientific field related to all aspects of the state, society, and human life So that every ―creation‖ of science does not beyond the dominance of Vietnamese politics where the academic freedom has not been assured for groundbreaking theoretical thinking about the law and the state Therefore, it is sometimes difficult to apply new theoretical knowledge, realizing into Vietnamese leal system In fact, thoughts about the law and the state of the scientists usually have prophetic, but sometimes their opinions are not accepted by state agencies, state officials, and they often refuse with the ―very simple‖ reason such as ―that is not suitable for Vietnamese conditions‖, or theoretical issues are often regarded as ―pure‖ theory - far from reality In fact, the theory is the reflection of practice and these reflections have been scientifically generalized, all theories are derived from practice There is no theory which does not originate from the reality of human life

Fourthly, scientific research in the field of law in Vietnam currently depends on funding, the investment of state agencies However, we not have a good mechanism of ―bidding‖ or follow orders from state agencies There is an existing fact, the state management agencies have a sizable amount of funding for scientific research, but there is no force to study In contrast, the training institutions have good human resources, but they are very limited in funding for scientific research

To innovate legal science in Vietnam

In order to innovate, firstly, it is necessary to focus on studying the fundamental issues of law, legal phenomena The studies must start from the rules of Vietnamese social and traditional life, associated with the common knowledge of mankind, avoiding the tendency of ―closing‖ with the reason of characteristics of Vietnam At the same time, we have to avoid the trend of ―simulating or copying‖ the theoretical issues of foreign legal science to formulate the Vietnamese theory system of laws Basic researches must become an effort not only of training and scientific institutions but also need the concentration, support and investment of state agencies with scientific management authority

scientific research must become the task of all training institutions, of teachers so that each training institution becomes a training center combine with scientific research

Thirdly, it is necessary to create the autonomy of training institutions on the operation, human resources, and finance Especially, we have to consider academic freedom as a guarantee for scientific development, avoid imposing, or binding by political views At the same time, considering to remove the management mechanism of the ministry or the administrative bodies We argue that universities should operate mainly on the basis of law, commitment and liability of training institutions before learners, employers, society - they are customers of educational institutions and are the most objective evaluators of training quality The accreditation of training quality must be conducted regularly, objectively and scientifically

In conclusion, it is necessary to emphasize the following:

Although many legal schools exist, scientists usually seek answers to the question: where the law comes from, what creat the law, What is the nature of law? These questions not only pose to humanity in history, but also in the present day Because of the fact that each school of law explains only one aspect of this very complex, multi-faceted phenomenon Therefore, any one-way interpretation of the law, separating it from society, from people are inadequate and will lead to many theoretical, methodological errors, make a gap between norms and practices, create inadequate judgments Cognitive mistakes inevitably lead to mistakes in practice In the context of the current global integration, cultures values of each nation, regions and the world tend to come together, make a unity in diversity, so it is necessary to know how to transplant the rationale elements of every legal school in the specific conditions of Vietnam to serve the interests of people, and nations We should not have a straightforward view, absolutization of any school of law

Regardless of the definition of law, the law is still the standard of human behavior, an institution that regulates human behavior Thanks to the law, the state is attached to the system of human social relations, participating in their awareness, behavior, and activities The law creates a framework to organize life, including economic, cultural-social life and many other issues in our national territory Laws affect every aspect of society, community, ethnicity, class, social class, and even each person Laws are a means to link people who live on a certain territory and secure their relationships with each other, their relationship with both the natural environment in their territory and across the Earth - the common home of humanity