The Socialist Precedent

Abstract

Judicial precedent is virtually a synonym of common law but has now gone global. Apart from Anglo-American common law and Continental civil law, precedent has been now adopted in socialist law. Vietnam creates a formal and functional system of precedent, Laos empowers its supreme court to develop precedent, and China adopts precedent-like practice called “guiding cases.” Marxist legal positivism, socialist legality, democratic centralism, and the assumption on the simplicity of substantive law and the “socialist life” seem to render the creation of precedent in the socialist legal system incomprehensible. Focusing Vietnam, this Article aims to explain why precedent emerges in socialist law, and to situate this practice within comparative theorization about precedent. It argues that the creation and function of precedent in the socialist legal system is due to the impact of the global diffusion of precedent, the dynamic adaption of the socialist jurisprudence, institutional structure, substantive law, and the transitional society. This precedent system is informed by the global idea of precedent, but is determined by socialist jurisprudence as the consequence of path dependency, and therefore presents a distinctive modern type of precedent, characterized as “socialist precedent.” This Article adopts epistemological pluralism — the integration of insights from complexity science, legal theory, post-modern and global comparative law, and literature on comparative precedent—, and empirical qualitative methodology — the use of original resources and extensive interviews with local jurists.