Reforms of Administrative Law in the PRC and Vietnam: The Possible Role of the Legal Tradition

Abstract

AbstractThe article takes its point of departure in administrative law and good governance as possible avenues for increased implementation of rights, including human rights. The author discusses the role that pre-modern East Asian ideas on governance and pre-modern administrative law and institutions for monitoring the executive's use of power may play for the substance and focus of the reforms of administrative law that have been undertaken in the late 20th century in the People's Republic of China (PRC) and in Vietnam. The article discusses the possible influence of ideas and institutions inspired by Confucianism and the School of Legalism, including such features as a meritocratic civil service, institutions for monitoring the executive and for dealing with complaints, instrumental use of law, and use of rewards, punishments and instruction to achieve the aims of the law. The author compares the prevalence of the features of pre-modern China and Vietnam with elements in legislation and institutions implemented under the late 20th century reform processes in the PRC and Vietnam. The article concludes that the legacy of the pre-modern system of administrative law and governance and related institutions appears to play a role in the modern reform process that is more than accidental, and that this legacy results in a relatively strong emphasis on a principle of legality in the legislation implemented under the reforms and in a relatively weaker emphasis on the principle of equality. The article suggests that features of the premodern legacy, especially the emphasis on exercise of executive power in accordance with law, may be explored as providing potential for contributing to an increased quality of public administration and an increased implementation of rule of law and specific rights, including human rights and rights of relevance to trade and investment. It is also suggested that these features of the pre-modern system may be explored by the development community and international organizations as potential for creating ownership and sustainability of governance and law reforms that are of interest to external partners of the PRC and Vietnam.