The Law of China and Vietnam in Comparative Law

Abstract

The law of China and Vietnam has been often ignored or marginalized in mainstream scholarship of comparative law. This is due to three orientalist assumptions, namely: nihilism (lawlessness); instrumentalism (law as a tool for political control without rule of law qualities); and assimilationism (no distinctive legal systems). These assumptions fail to capture the complexity of law in China and Vietnam and fail to place it in a better position in comparative law. This Article argues that the exploration of the law of China and Vietnam can substantively enrich comparative law scholarship, for the following reasons: first, there are multiple layers of law throughout their legal history, namely chthonic law, Confucian law, civil law, socialist law, and global law; second, the two states have accommodated some forms of the rule of law as a strategic response to the need to consolidate the legitimacy of the socialist regimes; and third, there are distinctive legal systems in these countries, namely the Confucian legal system and the socialist legal system, which are separate from other traditional legal systems (Islamic law, Hindu law, and Buddhist law) and other modern legal systems (civil law and common law). This Article concludes that the study of law in China and Vietnam can make important contributions to: traditional comparative law (functionalism and taxonomy of legal systems); post-modern comparative law (law and ideology, law and politics, law and culture, law and society, and legal pluralism); and global comparative law (legal transplants, global legal diffusion, and law and development).