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Section 5. Theory and history of state and law
https://doi.org/10.29013/EJLPS-19-3-28-34
Nguyen Thi Le Vinh, MA., Nguyen Thi Kim Thi, MA., Nguyen Thi Kim Chi, MA., Cao Thi Ngoc Yen, MA., Vinh University, Vietnam E-mail: vinhntl@vinhuni.edu.vn
COMPARISON BETWEEN CAPITALIST LAW-GOVERNED STATE AND SOCIALIST LAW-GOVERNED STATE IN VIETNAM
Abstract. This article discusses two main issues, namely, methodology of comparative politics and similarities and differences between capitalist law-governed state and socialist law-governed state in Vietnam. The author applies analytical method to clarify characteristics the law-governed state and then, applies comparative method to identify similarities and differences and find out advantages and disadvantages of this state organization type. Next, the author proposes measures to complete the legal system in Vietnam and facilitating effective development of a democratic, fair and civilized society in Vietnam.
Keywords: Comparative politics, capitalist, law-governed state, socialist, Vietnam.
Definition of comparative politics or more different countries or two or more political
Comparative politics is considered by most of systems in different stages of the same country or re-
scholars in the world as one out of four pillars of gion. In this aspect, comparative politics is associated
politics, namely, political theory, domestic politics, with political regionalistics. The second aspect is that
international relation and comparative politics. the fundamental method of comparative politics is
In fact, comparative politics not only plays a key comparative method — a method widely applied in
role in politics but also acts as one of the important sciences, including natural science and social science.
components of international studies in general, es- Consequently, comparative politics answers two
pecially in international relation studies and inter- questions, including What is compared? and How to
national law (for example, comparison of political compare? Accordingly, "comparative method is not a
institutions/constitutions). scientific epistemology principle used as the premise
Based on word combinations of noun "compara- for theory justification but it allows comparative as-
tive politics", methodology of comparative politics is sessment of empirical research result".
shown in two aspects. The first aspect is that subjects Use of comparative method in political studies
of comparative politics are political systems of two allows identification of similarities and differences in
political characteristics and helps to detect the interaction between culture and politics, geography and economics, tradition and modernity, the ordinary and the extraordinary to be eliminated. Theoretics of law-governed state Law-governed state is considered as a type of state organization that governs the society by constitutions and laws. In that state, law system acts as the highest-ranking tool in governing social relations and people are entitled to all democratic rights to the extent permitted by laws.
Regarding theoretic, law-governed state is not a type of state. Law-governed state covers common values and represents a level of democracy development. This means that law-governed state is associated with a democracy. Although law-governed state is not a type of state characterized by theoretic of socio-economic formations, it cannot exist in a non-democratic society.
Objection against the viewpoint that law-governed state is a type of state has important epistemo-logical significance in properly detecting nature of law-governed state. This epistemological significance includes the following aspects:
Firstly, law-governed state only exists when when capitalist democracy emerged. In fact, it is declared that law-governed state is being built in most of developing and developed capitalist countries as a result.
Secondly, as a type of organization and operation of a state and social regime, law-governed state is developed in not only capitalist regime but also socialist regime. In theoretic epistemology and fact, capitalist and socialist law-governed state all exist as a result.
Thirdly, law-governed state has common values presented in various forms by theorists, depending on their political — legal and academic viewpoint. Their forms may be different but in nature, law-governed state has the following general values:
1) Law-governed state is the concentration of democratic regime. Democracy is nature and condition, premise of the state regime. Law-governed
state aims to develop and implement a democracy and ensure that political powers belong to people. Accordingly, people fulfill their democratic rights via direct democracy and representative democracy.
2) Law-governed state is organized and operated to the extent permitted by the Constitution and laws. Constitution and laws fundamentally govern the whole State activities and social activities, decide constitutional compliance and legality of all organizations and activities of the state apparatus at all times. However, not all constitutional regimes and legal systems can be able to develop a law-governed state. Only Constitution and democratic and fair legal system can be bases for a law-governed regime in the state and society.
3) The law-governed state respects, emphasizes and assures human rights in all activities of the state and society. Human rights are criteria for assessment of rule of law of a state regime. All activities of a state must come from respect and assurance of human rights and facilitate fulfillment of citizens' rights under legal provisions. The relationship between individuals and a state is closely determined in legal aspects and is fair. Model of the relationship between the state and individuals is determined based on principle that state agencies must only do things permitted by law whereas citizens have rights to do all things, except for things prohibited by laws.
4) State powers in a law-governed state are organized and fulfilled based on democratic principles, including power delegation and power control. Characteristics and methods of state power delegation and control vary by state governments in countries but their similarity is that state powers cannot be assigned to one person or one agency but must be delegated (allocated) among legislative, executive and judicial agencies. Organization and fulfillment of powers must be closely controlled by specific power control mechanisms inside and outside state apparatus.
5) Law-governed state is associated with an appropriate Constitution and law protection mechanism. Bases of a law-governed state are Constitution
and a democratic and fair legal system, thus, a Constitution and law protection mechanism is always a requirement and prerequisite for ensuring that constitution and laws are always respected, emphasized and closely observed. Forms and methods of Constitution and law protection may vary by countries but they aim to ensure the highest-ranking and inviolable position of Constitution and eliminate acts against nature and provisions of constitution, regardless of subjects of these acts. In order to protect Constitution, law-governed state always requires development and implementation of a democratic, transparent and appropriate judicial regime to sustain and protect legislation in all activities of the State and society.
6) In a law-governed state, state powers are always limited to relationships between the State and economy, the State and society.
In the relationship between the State and economy, position, role, functions, duties of the State are determined by characteristics and levels of market economy model. Accordingly, the State respects, promotes objective rules of market, uses market to regulate economic relations and remedy, limit negative impacts of market.
In the relationship with the society, the State uses laws to manage the society, respects and follows position, role and autonomy of social structure (social organizations and social communities).
The relationship among the State, economy and society is an interactive relationship that regulates each other. The State is not ranked higher than economy and society and law-governed state is associated with economy and society, serves economy and society to the extent permitted by Constitution and laws.
Besides common values above, a law-governed state also includes specific values. Specificity of the law-governed state is characterized by many factors. In fact, these factors are very diversified, abundant and complicated and characterized by historical, economic, cultural condition, social psychology and geographical environment of each ethnic group. They
not only result in identity, distinction of each ethnic group during founding, protection and development of their country but also decide law-governed state's level of reception and absorption of common values. Acknowledgement of specificity of the law-governed state has important epistemological significance. With this significance, law-governed state is a common and specific category and a common value of the human kind and a specific value of each ethnic group and country. Consequently, there cannot be a common law-governed state for all countries and ethnic groups. Depending on historical, political, socio-economic characteristics and development level of each country and ethnic group, they build their own appropriate law-governed state model.
Similarities and differences between capitalist law-governed state and socialist law-governed state
It is essential to study similarities and differences between capitalist law-governed state and socialist law-governed state because this will correct two current deviant trends in Vietnam, namely, conservative trend with old-fashioned thinking and "left-wing" childishness and objection to and denial of the whole capitalism; gradually equivocal, wrongful and "right-wing" trend towards Western capitalist democracy despite Vietnam's more intensive and comprehensive integration with the world, especially with developed capitalist countries.
Fundamental similarities between capitalist law-governed state and socialist law-governed state in general, including the socialist law-governed state of Vietnam in particular, including the following main similarities:
Firstly, methods for organizing, developing and operating state apparatus must be regulated by laws. Law-governed state is a special form of state organization, in which, legislation is the highest-ranking tool to fulfill powers of people. The State and citizens must acknowledge the ultimacy of laws. Laws not only act as the main tool to manage all social activities of citizens but also ultimately prevail over
all powers of social and political organizations regulating each citizen in such society.
Secondly, state powers include legislative powers, executive powers and judicial powers.
Thirdly, there are sufficient, clear and transparent law systems representing people's will and expectation for governing legal relationships arising in the society. Law-governed state is a form of state organization, in which, state powers represent interests and will of most people, apply democratic regime to establishment of state powers and apply referendum. Accordingly, each individual must have obligations, responsibilities and rights as provided for by laws.
Differences between capitalist law-governed state and socialist law-governed state:
Firstly, socialist law-governed state and capitalist law-governed state must acknowledge methods for organizing, developing and operating state apparatus as provided for by laws. However, legal nature and contents regarding organization, development and operation of apparatus of such two states are fundamentally different. The clearest difference is the difference in constitutional and legal norms regarding organization, human resource structure and development, operation of power apparatus such as National Assembly and Parliament; President and State Leader, Prime Minister, Court, Constitutional Law, etc. Laws in socialist law-governed state acknowledge that all state powers belong to people, bodies of power (National Assembly, Government, etc) and only people, directly or via their delegates, have right to declare dissolution of the National Assembly, Government or elect the National Assembly and Government for a new tenure while capitalist constitution and laws acknowledge powers of the President or Prime Minister to dissolve the Parliament (National Assembly) or the Government, etc.
Secondly, in a socialist law-governed state, the state and its citizens must acknowledge ultimacy of laws because socialist laws represent will and expectation of the whole people. In a capitalist law-governed state, the state and its citizens must also acknowledge
ultimacy of laws but capitalist laws are not laws of the whole people and fail to fully represent their will and expectation but only reflect will and expectation of a group of people who are of capitalist class. In other words, laws of capitalist law-governed state only protect interests of capitalist class and fail to cover rights of employees. This is the most fundamental difference between socialist law-governed state and capitalist law-governed state.
Thirdly, capitalist law-governed state considers "trias politica" theory of Montesquieu as a fundamental theory in fulfillment of state powers. Accordingly, legislative, executive and judicial bodies independently fulfill three powers, including legislative, executive and judicial powers. Socialist law-governed state does not acknowledge separation of powers but considers that state powers are consistent and belong to people. Moreover, fulfillment of legislative, executive and judicial powers is assigned and coordinated to ensure that state powers are consistent and fulfilled most effectively.
Fourthly, socialist law-governed state relies on its economic base as public ownership of means ofpro-duction and is characterized by working class while capitalist law-governed state relies on its economic base as private ownership of means of production and is characterized by capitalist class.
Fifthly, besides differences related to class, socialist law-governed state only recognizes legal norms when they are made and passed based on a certain sequence and procedure white capitalist law-governed state often considers "case law" or "custom" as a type of "unwritten" legal norms.
The above differences result from differences in economic, political and social base between capitalist law-governed state and socialist law-governed state.
Economic base of capitalist law-governed state is capitalist market economy whereas economic base of socialist law-governed state is socialist-oriented market economy. Socialist orientation of market economy does not deny objective rules of market and act as the base for determining differences be-
tween market economy in capitalism and market economy in socialism. Consequently, characteristics of socialist market economy lead to differences between capitalist law-governed state and socialist law-governed state and create quality of socialist law-governed state.
Political base of capitalist law-governed state is multi-party regime whereas political base of socialist law-governed state is single-party regime. Political singularity must be always an attribute of socialist state — a state requires high consistency and integrity in organization and activities of all state structures to achieve targets of socialism.
Political singularity is characterized by statement of leadership role of single ruling party in Vietnam. Nature of a democracy does not depend on multiparty regime or single-party regime but depend on whom interests are represented by the ruling party and what state powers are used for in fact. Consequently, multi-party regime or single-party regime is not a prerequisite for building law-governed state and cannot be considered as bases for assessment of characteristics and level of a democracy. Leadership of the Communist party—the single ruling party for social life and state life, not only conforms to nature of law-governed state in general but also acts as the prerequisite for development of socialist law-governed state of people, by people and for people in Vietnam.
Social base of capitalist law-governed state is high respect for individualism whereas social base of socialist law-governed state is great national unity. With great national unity, law-governed state has a wide social base and extraordinary ability to gather, call on people of all classes to practise and promote democracy.
Although socialist market economy fails to eliminate social stratification into the rich and the poor, it is able to handle relationship between economic growth and social equality better. Social contradictions arising in development of market economy are less likely to become antagonistic contradictions and result in conflicts related to social division because
they are regulated by laws, policies and other tools of the state. This is one of conditions for ensuring political stability, unity of social forces for common development targets.
Some solutions to complete legal systems of Vietnam during development of socialist law-governed state
In order to develop socialist law-governed state in Vietnam at present, one of important and essential duty is early completion of legal system.
This means that Vietnam needs to rapidly determine the theory used to develop legal model.
Comparison between capitalist law-governed state and socialist law-governed state can show a lot of theoretical models that have been applied in countries in the world. On one hand, Vietnam cannot mechanically apply such theoretical models. On the other hand, Vietnam cannot ignore impacts and influences of these theories on movement of modern legislation. Consequently, studies of development of theoretical models for Vietnamese legal model need to be included in the relationship between two factors, including ethnicity and modernity.
It is necessary to study summary of historical experience ofVietnamese generations in development and implementation of legal institutions. Experience in law making and law enforcement in historical stages shows that Vietnamese generations managed to absorb foreign legal values to make Vietnamese legal identity.
Nowadays, Vietnam also needs to selectively, proactively and smartly absorb foreign legal values to keep reinforcing and developing the country. However, absorption of foreign legal values and experience needs to observe three fundamental conditions. Firstly, thoughts of imported laws must be in line with prevailing legal consciousness of the receiving country. Secondly, imported laws must be in line with structure, forms and methods of state power organization in the host country. Thirdly, imported laws must conform to social production method and
must be accepted and supported by the majority of members in the society.
Demand for integration into international economy in the context of globalization and assurance of compatibility of national laws with international legal space requires Vietnam to promote legislative reform. Legislative reform can be summarized as follows:
The first reform is legislative planning reform. If law making plans are only made based on proposals of the competent authorities for gathering, reviewing and passing, they cannot remedy failure to complete plans because many law-related projects are registered like "reservation" and in fact, it is very difficult to make legal plans because characteristics, targets, governing subjects and governing methods have not been fully determined. Document registration like "reservation" fails to closely bind responsibilities of agencies proposing drafts. In order to remedy this, the National Assembly only needs to pass legal initiatives, instead of making and passing annual and five-year law making plans. Individuals and agencies (under legal provisions) proposing legal initiatives assume responsibility for explaining bases regarding necessity of targets, subjects to be governed and feasibility of documentation. Accordingly, the National Assembly discusses passes and assigns drafting responsibility to appropriate agencies, organizations and individuals.
The second reform is change of viewpoint of act scope. Recent law making processing in Vietnam shows that most of made and passed acts have a large number of governing norms and subjects and large governing scope. Making of large-sized acts requires results in drafting extension and inappropriateness and inconsistency between drafts and other acts. Especially, significant and complicated acts often require a long time of argument, discussion to reach an agreement on viewpoints and forms of representation. Consequently, it takes a long time to prepare, compile, appraise, discuss, edit and pass drafts at the National Assembly. A large gap between urgent de-
mand for act amendment and ability to amend acts makes passed acts lag behind daily life. In order to fix this, it is necessary to focus on developing and passing acts with narrow governing scope, instead of developing and passing large-sized acts. An act with a few articles will be rapidly prepared and promptly meet demand for law amendment and easily conform to international legal space. Usefulness of an act with a few articles is characterized by not only brief contents, easy preparation but also easy control of appropriateness and consistency, easy amendment, if required and easy application in fact.
The third reform is reform of law passing methods and procedures. Traditional law making procedures of legislative bodies including discussion by delegates of the National Assembly, appraisal by committees of the National Assembly, explanation and listening by preparing bodies cause difficulties in improvement of quality and effectiveness of acts. It takes a long time to orally discuss whereas drafting contents are not concerned. Consequently, discussion opinions of delegates of the National Assembly on drafts are not really good. In order to fix this, before drafts are discussed at the National Assembly, groups of experts from research institutes, universities need to scientifically appraise drafts to assess specific aspects of the whole law-related projects, from wording, structure to contents of acts and identify wording and document errors. Scientific appraisal of drafts by independent groups of experts is a base for drafting and editing and act as reference documents for delegates of the National Assembly when discussing drafts. On the other hand, in order to improve quality of acts, draft passing procedures need to be performed in two steps, including discussion and passing at a corresponding committee of the National Assembly and discussion and passing at a plenary session of the National Assembly. Drafts are only considered, discussed and passed at the National Assembly only when they are passed by a committee of the National Assembly. This not only emphasizes law making role of committees of
the National Assembly but also saves working time of the National Assembly and improves effectiveness of acts.
The fourth reform is strengthening absorption of people's opinions on draft law making. Brief draft laws with a few articles will be extremely accessible to people. People's opinions on law making are important prerequisites for ensuring that laws properly represent will, expectation of people and are actually of people, by people and for people. It is neces-
sary to prescribe that collection of people's opinions (besides collection of opinions of agencies, organizations or some officers) is mandatory during drafting. Especially, inclusion of people's opinions in drafts (which opinions are included, which opinions are not included, why not included) must be publicly and transparently notified. This will make people feel that their opinions are respected and their trust in laws will be reinforced as a result.
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