Renovating courts: the role of courts in contemporary Vietnam

Nicholson, Pip

doi:10.1017/cbo9781107588813.017

Cited by 6 publications

(4 citation statements)

References 12 publications

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“…See e.g. Quinn (2003), p. 431; Gillespie (2007); Nicholson (2002), p. 215;Nicholson (2015); Nguyê˜n (2012); Thaỏ (2015); Tương (2009).…”

Section: Analytical Framework and Methodologymentioning

confidence: 99%

The Choice of Norms in Courtroom Adjudication in Vietnam: In Search of Legitimacy in a Socialist Regulatory Context

Tran

2019

AsianJLS

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Notwithstanding its defining feature of normative pluralism, the socialist state of Vietnam basically adopts a legal centralist approach to regulation. The judiciary is arguably the most illustrative of this approach, since it is the main forum where legal centralism encounters normative pluralism. Our research examines the choice of norms in judicial adjudication in Vietnam to check the effectiveness of its legal centralist approach. It finds that, despite lacking institutional support, judges managed to apply customary norms at their discretion against the state’s emphasis on top-down legal rules. A legitimacy-based analysis explains this phenomenon. It points out that judges conceptualized their legitimacy under the influence of both legal and extra-legal rules, thus making it apart from the legality. Judges attempt to bridge the gap between legitimacy and legality enabled de factor normative pluralism. In looking at the influence of customary norms over judicial adjudication, the article aims to make both theoretical and practical contributions. Theoretically, it enriches the scholarship of normative pluralism by showing how legitimacy-building keeps normative pluralism effective, irrespective of the dominating legal centralism. Practically, it proffers insightful implications for the ongoing court reforms in Vietnam based upon the findings.

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“…See e.g. Quinn (2003), p. 431; Gillespie (2007); Nicholson (2002), p. 215;Nicholson (2015); Nguyê˜n (2012); Thaỏ (2015); Tương (2009).…”

Section: Analytical Framework and Methodologymentioning

confidence: 99%

The Choice of Norms in Courtroom Adjudication in Vietnam: In Search of Legitimacy in a Socialist Regulatory Context

Tran

2019

AsianJLS

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“…From the 1880s until 1954, French colonial authorities adopted policies that ultimately proved more destabilizing than imperial assimilation. 84 officials encouraged highlanders to abandon swiddening agriculture and adopt wet rice cultivation. This practice opened previously remote mountainous areas to Kinh traders and settlers from the overcrowded lowlands.…”

Section: B French Colonial Regulation Of Highland Communitiesmentioning

confidence: 99%

“…See Oscar Salemink,82 Tan Li, A View from the Sea: Perspectives on the Northern and Central Vietnamese Coast, 37(1) J. SOUTHEAST ASIAN STUD.83 (2006) 83. WOODSIDE, supra note 73, at 167 84. See GERALD C. HICKEY, SONS OF THE MOUNTAINS: ETHNOHISTORY OF THE VIETNAMESE CENTRAL HIGHLANDS TO 1954 300-12 (1982).…”

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confidence: 99%

Legal Pluralism and the Struggle for Customary Law in the Vietnamese Highlands

Gillespie

Tran

2022

The American Journal of Comparative Law

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For centuries, diverse groups of people living in the highlands of Southeast Asia have resisted lowland empires in China, Myanmar, Thailand, and Vietnam. The interaction between lowlanders and highlanders has been described as “internal colonization”—a process involving the absorption or displacement of highland communities and customary law. This Article draws on an empirical study to explore whether the Vietnamese Government’s new “village covenant” (Hương ước) program is continuing internal colonization by transforming and displacing customary law in the Vietnamese Central Highlands. It uses a novel analytical framework—synthetized from legal pluralism and systems theory—to argue the state legal system and highland communities lack a shared conceptual grammar in which to identify common ground, reconcile differences, and converge. The Article closes with the conclusion that, although highland communities are resisting internal colonization, the forces of modernity are slowly changing the deeply held epistemic assumptions underlying customary law.

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“…To complicate matters further, Vietnam's judicial system is arguably flawedjudicial independence is questionable, as is the availability of a fair trial and fair compensation in cases of human rights violations. 112 Finally, the 2013 Constitution limits human rights in ways that are unreasonable. Article 14 provides that national security interests can be invoked to restrict protection of human rights, while Article 15 provides an overly expansive and vague prohibition against the use of human rights and citizens' rights to infringe on the national interests, or the rights and lawful interests of others.…”

Section: B Challengesmentioning

confidence: 99%

Constitutional Debate and Development on Human Rights in Vietnam

Vu¹,

Tran²

2016

Asian J. Comp. Law

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This article analyzes the constitutional debate on and development of human rights in Vietnam throughout five constitutions from 1946 to 2013, as well as the prospects and challenges in promoting human rights in Vietnam during and after the development of its 2013 Constitution. It begins with an investigation and discussion of the human rights provisions from the 1946 Constitution to the 1992 Constitution -a period where the socialist human rights tradition was established in Vietnam. It follows with an analysis of the debates on the new human rights and citizens' rights provisions in the 1992 Constitution, where a new concept of natural human rights emerged. The article continues to explore how the struggle and debates surrounding the competing conception of rightssocialist and positivist on one hand and natural law-based on the other -come into play in shaping the 2013 Constitution. It then proceeds to evaluate the potential challenges involved in the implementation of these rights in the coming years. The authors argue that the development of constitutional human rights in Vietnam is still limited by ideological barriers. It also faces substantial practical challenges owing to, inter alia, the absence of provisions for the immediate implementation of such rights as well as legal mechanisms for the protection of constitutional rights, such as a constitutional review system.

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Renovating courts: the role of courts in contemporary Vietnam

Cited by 6 publications

References 12 publications

The Choice of Norms in Courtroom Adjudication in Vietnam: In Search of Legitimacy in a Socialist Regulatory Context

The Choice of Norms in Courtroom Adjudication in Vietnam: In Search of Legitimacy in a Socialist Regulatory Context

Legal Pluralism and the Struggle for Customary Law in the Vietnamese Highlands

Constitutional Debate and Development on Human Rights in Vietnam

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