Düsseldorf University Press (d|u|p)

McNally, Louise

Balogh, Kata

Petersen, Wiebke

Kinds, descriptions of kinds, concepts, and distributions

Naumann, Ralf

Dependencies, semantic constraints and conceptual closeness in a dynamic frame theory

von Alemann, Ulrich

Briesen, Detlef

Lai, Quoc Khanh

Introduction 
Ulrich von Alemann/Detlef Briesen/Lai Quoc Khanh 
This book is the result of an interdisciplinary conference on “the rule of law.” 
Discussions about the topic, especially in the field of development cooperation, 
are legion. But our approach is somehow unique: It is the outcome of the first 
meeting of its kind in the Socialist Republic of Vietnam. Our workshop took 
place in autumn 2014 at the National University of Vietnam, University of 
Social and Human Sciences, Hanoi (USSH). The conference is thus more than 
only another document of the intensive German-Vietnamese cooperation; it 
also indicates the further development of the legal state which can be observed 
in Vietnam recently: to be able to discuss such an important issue at a univer-
sity is a distinct sign of the deep transformation process which is currently 
occurring in the Southeast Asian country. Another element that makes our 
publication exceptional is that instead of beginning immediately with a highly 
specialized debate on the state of law in Vietnam from the perspective of one 
single academic discipline (which will surely emerge in the coming years), we 
started to discuss numerous facets of the subject “rule of law” arising from a 
multidisciplinary dialogue. For this reason, the participants and speakers, both 
at the conference itself and for this present publication, come from various 
scientific disciplines in Vietnam and Germany: political, historical, social, 
economic and legal sciences (in which in Europe the topic is discussed most 
extensively), but also members of Vietnamese governmental and non-
governmental organizations. 
Our aim for the conference and the conference volume is to open up a dia-
logue about the rule of law between two very different legal cultures, the Ger-
man-European and the Vietnamese, which we must locate in the complex set-
10 
ting of Southeast or East Asia. As a result of the complexity of the subject 
matter, we have therefore refrained from providing a limiting definition of our 
discourse object “Rechtsstaat.” We have learned to operate cautiously in order 
to avoid the danger of Eurocentrism, as well as too easily dismiss questionable 
circumstances as country-typical. And in general, caution is necessary, as the 
constitutional state, however much we may agree on the goal of its worldwide 
realization, was, on the one hand, always an ideological concept which served 
issues like the competition between the great powers for colonial possessions 
and later for the superpowers to expand their zones of influence. The alleged 
absence of the state of law served only too often to colonize states or to inter-
vene directly in their internal affairs. On the other hand, however, serious vio-
lations of the rule of law cannot be so easily explained in terms of a different 
interpretation of the latter. But by all means different legal traditions have to 
be taken into account. It cannot be ignored that European states such as Ger-
many follow the Roman tradition of law, while a country like Vietnam is his-
torically and contemporarily deeply influenced by the Confucian tradition of 
custom and morale.  
It is true that we have to accept distinct differences between Roman-
European law, and Southeast and East Asian customs and morale, but both 
traditions also contain many common elements. They make it possible to form 
an intersection in the definition of the rule of law which is perfectly consistent 
with today's minimum requirements; in particular the binding of state action 
to law and justice, the exclusion of state arbitrariness, the principle of propor-
tionality of state action, the division of powers and the independence of the 
courts, and also to examine the legality of state action, and thus legal certainty. 
However, the individual contributions to our volume show that this cata-
logue is limited or extended by more criteria, or that individual aspects of the 
rule of law are placed at the center of attention. At the same time, at least three 
aspects are identified which were of considerable importance for the discussions 
during the conference: 
- the exclusion of state arbitrariness and the principle of proportionality of 
state action, 
- legal certainty and equality of all before the law, 
- the enormous international relevance of contemporary trans- and interna-
tional legal systems. 
11 
From the very beginning, we were less likely to document the already estab-
lished current state of research, since this is more or less non-existent with 
regard to Vietnam, but to initiate research processes in a way which is appro-
priate to the relevance of the topic. The legal state is scientifically only ade-
quately researched if it is addressed from various scientific and socio-political 
angles, also taking into account various perspectives from different legal cul-
tures. 
For this reason, our volume is the result of a twofold approach: the contri-
butions from Vietnam stem mainly from the legal, political and historical 
sciences. They first and foremost document the efforts to improve the connec-
tion with international debates and research topics within the framework of 
the Vietnamese reform process (Doi Moi). Partial aspects of this endeavor then 
lead to those more specific questions which are addressed by the Vietnamese 
authors in this volume. They can be specified here briefly as follows. 
The contributions by Nguyen Thi Hoi, Pham Duc Anh and Vu Thi Phung 
deal with the history of Vietnamese law for the period before the middle of the 
nineteenth century, when the colonization by the European Great Power, 
France began. The authors question the situation in Vietnam prior to coloniza-
tion using criteria such as state arbitrariness and proportionality of state action. 
Since the state in the early modern times, in Europe as well as in Asia, consist-
ed essentially of the ruling monarch and his officials, a discourse on arbitrari-
ness and proportionality always implicitly criticized the ruling monarch. In 
our context, however, perhaps a more important goal of the contributions is 
recognizable: to search for pre-colonial traditions and to make these usable for 
today's societal and political change in Vietnam. 
Especially in Vietnam, the division of powers between legislature, executive 
and judiciary, as defined in most contemporary constitutions, is a decisive 
feature of the rule of law. This view is at least largely accepted in contemporary 
debates with particular emphasis on the independence of the judiciary. The 
contributions by Lai Quoc Khanh and Nguyen Thi Chau Loan therefore focus 
on the division of powers: Either as an attempt to demonstrate its relevance for 
the entire constitutional and societal development of Vietnam or to design 
models for the implementation of a more independent judiciary.  
Another focal point is the problems of corruption and low compliance of 
functionaries in the implementation of legal norms. Such questions are being 
revived in Vietnam today either with reference to the teachings of the found-
12 
ing father of the nation, Ho Chi Minh, or are more and more addressed in the 
traditional (Confucian) sense as improvements in the education of officials (Lai 
Quoc Khanh/Nguyen Ngoc Anh, Nguyen Anh Cuong, Hoang Thi Kim Que, 
Nguyen Thi Thuy Hang/Phan Duy Anh and Bui Xuan Duc). In addition, a 
number of contributions (from Dinh Xuan Ly, Duong Xuan Ngoc, Phan Xuan 
Son and Vu Cong Giao) deal with the contemporary constitution of Vietnam. 
The two main topics are the problem of whether and to what extent the reform 
process in the country is adequately secured, and whether the reforms provide 
the necessary preconditions to ensure especially economic cooperation with 
Vietnam’s neighboring countries.  
The contributions from Germany are also an outcome of a respective ap-
proximation to the problems of the legal state. They are more generalized and 
are primarily geared to developing discussions for future cooperation. Since the 
authors come from various scientific disciplines, these articles reflect the diver-
sity of today’s debates about the constitutional state. The contributions from 
Germany provide key concepts and theories of the scientific discourse about 
the constitutional state and the development of law, also in transnational and 
international contexts. 
Legal pluralism is such a key concept. Detlef Briesen uses it to describe the 
various forms of discrimination by law in colonial states, a condition which has 
also been felt in Vietnam since the conquest by France, and which has had a 
profound impact until today. Another key concept is that of governing by law. 
Julian Krüper’s contribution is concerned with the question of how the consti-
tutional state can act “constitutionally” in its everyday practice without always 
referring directly to the idealistic provisions of the constitution. Michael 
Baurmann and Liu Mengyue focus their article on “trust”, a category which at 
first sight is a non-legal one. They ask how in an East Asian society with many 
similarities to Vietnam, namely the Chinese society, trust in business relations 
can be established without formal legal guarantees. Justus Haucap follows a 
similar approach and points out the importance of institutional and informa-
tional requirements for modern market economies. The contributions by 
Thomas Schmitz and Ulrich von Alemann discuss the development of transna-
tional and international law – on the one hand, the exemplary creation of 
transnational law by the European Community, on the other hand the increas-
ing role of international organizations in the creation of law. 
13 
These terms and theories are certainly of some importance for the future 
debate on the constitutional state in Vietnam and elsewhere. During the dis-
cussions at the conference and in the articles in this volume, the enormous gap 
in current research has become more visible. For further research we propose to 
focus on the different periods of modern Vietnamese history and their respec-
tive relation to a state of law. 
- Before the colonization by France, the Nguyen dynasty’s rule in particular 
was predominantly based on concepts of governance and administration 
which originated from contemporary China. The rule of law, as well as the 
entire legal system, were not determined by the formalized European (Ro-
man) law but by the Confucian concept of custom and morale. It was based 
on trust in the moral integrity of the emperor and his mandarins.  
- With the colonization, France established legal pluralism in Indochina, a 
common concept of colonial rule to discriminate the “native subjects”. Con-
sequently, the validity of Confucian-law was increasingly limited to the 
marginalized Vietnamese village population. The French “Etat légale” was 
based on arbitrary decisions. It not only failed to create a system of legal 
certainty and equality but even established systematic discrimination and 
injustice by law. The French colonial authorities destroyed trust in law to 
such a degree that the “Etat légale” can even be understood as an essential 
source of the anti-colonial uprisings since World War I. 
- With the August 1945 revolution, a process of enforcing “socialist legality” 
began, following the model of the Communist Bloc, although the founding 
father of modern Vietnam, Ho Chi Minh, distanced himself from these ide-
as, and so Vietnam never developed a theory of socialist legality like the 
contemporary GDR for example. This was also because Vietnam was con-
stantly involved in wars for almost 50 years, from the Japanese occupation 
in 1940 until the end of the Third Indochina War in the early 1990s.  
- Since the beginning of the reform era (Doi Moi) in the mid-1980s, the 
Vietnamese government has been seeking to define the rule of law for Vi-
etnam and to implement reforms. A key impetus for the latter is, in partic-
ular, the need for legal certainty which is required by national as well as in-
ternational investors or must be guaranteed in the context of the planned 
cooperation in ASEAN. The state of law in Vietnam is still in progress  
From these four epochs, fascinating perspectives arise for further comparative 
law research, for which first ideas have been developed here in our volume. 
14 
This would not have been possible without solving the problem of translating 
complicated legal terms from Vietnamese into English. Therefore, we would 
like to express our very great appreciation to the translators, Dr. Dao Duc 
Thuan, Dr. Lam Minh Chau, and Tran Minh, MA.  
 


Introduction

The French “État legale” in Vietnam. Between Legal Pluralism and Police State

Haucap, Justus

The Rule of Law and the Emergence of Market Exchange: A New Institutional Economic Perspective

Vu, Cong Giao

The State of Law in Vietnam: Understandings, Prospects and Challenges

Fleischhauer, Jens

Degree Gradation of Verbs

Sohlich, Melissa

Hülsmann, Katharina

Thelen, Timo

Udzik, Marvin

Nonnenberg, Bastian

Görlach, Fauve

Mae, Michiko

Scherer, Elisabeth

Fegler, Alexander

Jambor, Adam

Steinhäuser, Daniel

Japan-Pop-Revolution

Neue Trends der japanischen Gesellschaft reflektiert in der Popkultur

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