B. Protections Under Substantive Laws 10

1. Statutory Rape 10
2. Spousal Immunity 13
3. Ex Post Facto Law 16

C. Protections Under Procedural Laws 19

        1. Warrant for Arrest 19
        2. Release on Bail 22
        3. Speedy Trial 25
        4. Public trial 26
        5. Right to Confront Witnesses 29

D. Contractual Relationships 30

1. Statutes of Limitation 30
2. Incapacity of Minors to Contract 33

E. Statutes On Real Estate 35

1. Adverse Possession 35
2. Easement 37

IV. Conclusion 40

Appendix 43

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I. Introduction

In the fifteenth century, the Vietnamese developed a comprehensive legal code which became the country's governing body of law for more than 300 years.  That body of law is considered the most important legal document in Vietnamese legal history.  The work is popularly known as the "Hong Duc Code" or the "Lê Code."

The Code reflected the unusual genius of the Vietnamese legal tradition.  Although influenced to some extent by Chinese law, the Code addressed the unique customs and practices of Vietnamese society and became a model for subsequent legal development in Vietnam.  Some practices were even accepted into modern Vietnamese law.  Although subsequent rulers rejected the Code, many of its provisions became customs in Vietnamese society.  These customs traditionally had binding force superior to that of official law.

The Lê Code contained several advanced legal concepts that are comparable or equivalent to those in modern western law.  These concepts included statutory rape, spousal immunity, a prohibition against ex post facto law, a statute of limitations, the incapacity of minors to contract, adverse possession, and easement.  The Lê Code also recognized the rights which Americans today regard as "fundamental civil liberties."  An accused under the Lê Code was entitled to a warrant before arrest, release on bail, a speedy and public trial, and the confrontation of witnesses.  This Note selects these concepts for comparison because they most closely resemble concepts found in United States jurisprudence.  An examination of the similarities between these concepts and their counterparts in modern United States law will show the advanced state of traditional Vietnamese law during the fifteenth century.

This Note examines traditional Vietnamese law from the perspective of modern United States law to study the meaning of the former, its advanced features, and its application in traditional Vietnamese society.  This analysis seeks to enhance an understanding of how Vietnamese society dealt with legal problems which are common to modern United States jurisprudence and how some legal concepts were formulated and applied in a society that is much different from modern American society.

II. Background of the Lê Code

A. Historical Context

1. The Establishment of the Lê Dynasty

At the beginning of the fifteenth century, Vietnam was briefly occupied by the Chinese.  This occupation led to a liberation struggle which lasted for more than ten years.  In 1427, under the leadership of Lê Loi, the Vietnamese drove out the invaders, reclaimed their independence and reestablished the Vietnamese state.

Lê Loi ascended the throne in the same year and established the Lê Dynasty.  The Lê Dynasty lasted for 360 years, from 1428 to 1788, and consisted of two major periods, the 'unified' and the 'decline' periods.

Most of the accomplishments attributable to the Lê Dynasty occurred during the 'unified' period, the first one hundred years of the dynasty.  After Lê Loi, the throne passed to nine other emperors during the 'unified' period.  Among these rulers, Emperor Lê Thanh Tong was considered the most able.  He was credited with many of the legal works published during the Lê Dynasty.  These achievements earned him a reputation as the most "imaginative and creative lawmaker" in Vietnamese history.   He devoted more attention to the development of law than to most other areas during his reign.  The Lê Code was enacted during his rule.

During the 'decline' period, the next 260 years, there was no significant contribution to the codification of the Lê Code.  When the Lê Dynasty collapsed in 1788, the Tay Son Dynasty came to power and ruled the country until 1802, followed by the Nguyen Dynasty which ruled until 1945.  These subsequent dynasties did not recognize the Lê Code to any substantial extent.

2. The Government Structure Under the Lê Dynasty

The study of a country's laws requires an understanding of the structure of its government.  Political institutions provide the medium within which law develops and operates.

The government under the Lê Dynasty was an absolute monarchy.  The emperor had unlimited power and ruled by a mandate from Heaven.  The emperor, however, was held accountable to the will of Heaven.  This will, according to Professor Lê Kim Ngan, was reflected in the will of the people.  In short, to serve the will of the people was to serve the mandate of Heaven.

The governmental apparatus directly under the emperor consisted of six Ministries (Bo): Civil Services (Lai), Civil Affairs (Ho), Protocol (Le), Military (Binh), Punishments (Hinh), and Public Works (Cong).  Officials serving in these Ministries were selected through examinations or nominations.  The selection process sought to recruit only qualified people for government service.

Each Ministry was charged with specific functions.  For example, the Ministry of Punishments enforced the law, managed litigation, and reviewed judgments rendered by the courts.  The functions of this Ministry were generally limited to judicial matters.Each Ministry had a separate and independent review agency which was empowered to inspect its daily operations.  The review agency of the Ministry of Punishments was called the Criminal Review Agency.

Under the Lê Dynasty, there was no independent and separate judiciary as in a modern constitutional government.  Instead, the chief official at each political division conducted all judicial proceedings within his jurisdiction as well as performed his administrative duties.

Since there was no legislature or lawmaking body, the emperor was officially responsible for handing down the law.  In reality, the emperor would delegate the task of drafting the law to certain scholars who would complete the work and present it to the emperor for approval.  If approved, the emperor would decree the work to become the official body of law.  This document would then become binding on all individuals and government agencies.

The Lê Code was a comprehensive code and it touched on almost all subject matters.  It established the framework upon which the government was organized.  The governmental structure during the Lê Dynasty was, to some extent, a creature of the Lê Code.  Thus, it was created to function within and reinforce the law.

B. Influence of the Lê Code on Subsequent Legal Development in Vietnam

The Lê Code was a brilliant achievement of the Vietnamese legal tradition.  During the Lê Dynasty, law had a recognized and respected role in governance.  Soon after ascending the throne, Emperor Lê Thai To proclaimed to the people that "[f]rom the beginning of time, to govern the country, there must be law.  Without law, there will be chaos.  Therefore, our forefathers have made laws to teach people what is good, what is evil; to do good, to avoid harm; and not to break the laws."

The law of each society reflects not only the social conditions of the state, but also the spirit and traditions of the people.  The existence of certain laws indicates the presence of a particular problem the law was intended to address.  The factual contours of the problem may change, but certain underlying principles such as fairness to litigants, integrity of the judicial system, or preservation of cultural values and national heritage remain consistent.  Although the subsequent rulers of the Nguyen Dynasty enacted a new legal code, which was copied from the Chinese Ching Code, the Vietnamese continued to adhere to the Lê Code under the guise of traditions and customs.  The people resisted change partly because the Nguyen Code was not concerned with the "pragmatic social arrangements such as contract, inheritance or land tenure" which were norms under the Lê Dynasty.

The value of a body of law depends more on its acceptance than on the fact of its enactment.  This is particularly true in Vietnamese society where the people are accustomed to the maxim Phep Vua thua le lang (Village customs take precedence to the King's orders.)  As a result, the fifteenth century's laws became the nineteenth century's customs.

The resistance to change demonstrates the significance of the Lê Code and its influence on subsequent legal development.  Despite official rejection by the Nguyen Dynasty, the Lê Code laid a concrete foundation for later legal development in Vietnam.  Professor Vu Van Mau commented that:

The law under the Lê Dynasty was a true reflection of Vietnamese society.  Because it was in accordance with social and religious conditions, the Lê Court's law had a significant influence on the people.  Today, a large number of customs in marriage or family law still reflect the provisions in the Lê Code.

Thus, although the Lê Code did not become an official body of law in modern Vietnam, it set the standard upon which the Vietnamese legal tradition subsequently would develop.

III. Comparative Analysis

A. The Purposes of Comparison

The Lê Code is different from modern United States law in most respects.  It came into existence in a different society, was influenced by different social and cultural values, and was the product of a different way of thinking.  Undoubtedly, the drafters of the Lê Code intended that it serve different purposes or assume different missions within the Vietnamese legal and social order.  Out of these differences, however, emerge striking similarities between the two legal systems.  The similarities establish a bridge of understanding between the two bodies of law, and the connection serves several purposes.

The Lê Code explains some traditional Vietnamese legal concepts in modern legal language.  In comparing Vietnamese concepts to their comparable counterparts in United States law, knowledge of the latter can help explain the nature of the former.  For example, understanding the underlying purpose of statutory rape law in United States jurisprudence sheds light on why the Lê Dynasty lawmakers promulgated a similar provision.  Comparative law furthers the understanding of one legal system on the basis of knowledge of another system.  Given the age of the Lê Code, its long period of nonuse, the scarcity of scholarly materials on the subject, and the lack of knowledge about the Code in the West, it is difficult to present traditional Vietnamese law meaningfully without the aid of literature about United States law.

This comparison also utilizes American legal terms in explaining traditional Vietnamese law.  When two different and unrelated legal systems refer to a legal concept, they do not necessarily refer to the same thing.  When the lawmakers under the Lê Dynasty promulgated law on some requirements which resemble the United States concepts of arrest warrant, bail, speedy and public trial, they may have been codifying common practices or customs long adopted in that society.  This Note, however, refers to these entitlements as "fundamental rights of an accused."  The borrowing of this uniquely American labeling is necessary for a comparative discussion of the concepts in terms of constitutional protection, the rationale and purpose of each concept, the protection of the accused from potential abuse of power by the state, and the balancing of state and individual interests.

Similarly, when the traditional Vietnamese lawmakers promulgated the provisions on statutes of limitations or the incapacity of minors to contract, there is no indication that they meant to pronounce a civil law on contractual limitations or any "statute of limitations."  Rather the provisions are technically criminal in nature because they prescribe plain prohibition of certain practices and provide penal sanctions for violations.  It makes no sense, however, to explain these provisions in terms of criminal law as they are understood in United States jurisprudence.  A comparative analysis enables us to better relate practices of a traditional society with more familiar concepts in the United States legal tradition in order to further understand the traditional society.

Additionally, a comparison provides a different perspective from which to view the United States legal tradition.  From this perspective, one can appreciate a larger picture of modern United States law.  One commentator reasons that:

When one is immersed in his own law, in his own country, unable to see things from without, he has a psychologically unavoidable tendency to consider as natural, as necessary, as given by God, things which are simply due to historical accident or temporary social situation. . . . To see things in their true light, we must see them from a certain distance, as strangers, which is impossible when we study any phenomena of our own country.