State and Law - Tdtn - Fall 2011

7/29/2019 State and Law - Tdtn - Fall 2011

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Author: Thai Do Thuy Ngoc, MBA, LLM

International University


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Origin of the State (1)

The Divine Theory

The Patriarchal Theory

The Social Contract Theory

The Natural Theory

The Force Theory


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Patriarchal Theory

Patriarchy: a social system in which therole of the male as the primary authorityfigure is central to social organization,and where fathers hold authority overwomen, children, and property. (implyingthe institutions of male rule and privilegeand female subordination)

The family is the first constituent of thesociety. The State is like the father headof the family.


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Social Contract Theory

The view that persons moraland/or political obligations aredependent upon a contract oragreement among them to

form the society in which theylive

The State is essentially acontract between people.


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Natural Theory

Men have the urge toward being part of thecommunity and being dependent on a leader.

The State is then an organization of supermen with divine mission as leader


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Force Theory

State arose fromuse of forcebetween clans. It is

created by thewinner to governthe loser. Ithappens in wars,

where the strongdominated theweak.


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Marxist-Leninist Theory


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Marxist-Leninist Theory

The State did not always exist. There were no

State in primitive societies. The State emerged

and diluted due to natural socio-economic

developments and social class fights.

The State is a special organ that appears at a

certain moment in the historical evolution of

mankind, from the division of society into

classes and will disappear at the same time

that this division disappears. The State is born as an instrument of the

possessing class to maintain the domination of

this class over society.


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Modern International Law

The State as a person of international law

should possess the following qualifications:

(i) a permanent population,

(ii) a defined territory,

(iii) legitimate government,

(iv) capacity to enter into relations with other

states.

(Art. 1, Montevideo Convention on Rights and

Duties of States in1933)


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What is State?

A special power mechanism

Established by the ruling class

To protect benefits of the ruling class

To conduct the function of society

management in accordance with the will

of the ruling class


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Natures of State

As the instrument of the governingclass to organize and conductpowers, the State will turn the ideasof the governing class to those of theState and require other classes toobey.

The classnature

As a public power agency, the Statewill resolve matters of a civil society,

conduct services for public benefits,protect public order, stability andsocial values (organization andmanagement over social, economicand other fields).

The societynature


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Features of State

Establish public power

Divide population into administrative

territory units

Possess national sovereignty

Promulgate law

Collect tax

Issue money


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Functions of State

Are aspects of operations of the State tocomplete missions of the State expressingthe role and natures of the State

Are classified into: Internal relations: social order maintenance,

economic regime protection

External relations: national defense, diplomaticrelations

Are conducted through forms of lawconstruction (~legislature branch),implementation (~executive branch) andprotection (~judicial branch)


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Types of State

State of theMasters

State of the

Feudal

State ofCapitalism

State ofSocialism

As a collection of allfundamental and

specific signs of State,

expressing its class

nature and the

conditions for it to exist

and develop, considered

in the context of a certain

socio economic form


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Forms of State

Ways to organize State powers and

methods to perform such powers

3 factors:(1) Form of State governance (Government):

Monarchy (absolute/constitutional) vs. Republic

(presidential/parliamentary)

Others (military dictatorship)

(2) Form of State structure:

Single State vs. Federal State

(3) Political Regime:

Democracy vs. Anti-democracy


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Forms of State Governance

Monarchy

All political powers of theState is passed down toan individual (head of

State) and will betransferred based on theprinciple of hereditary.

Absolute monarchy:Brunei, Swaziland

Constitutionalmonarchy: Cambodia,Thailand, UK

Republic

Political powers of theState belongs to a highlevel organ elected by the

people for a defined term. Presidential republic:

USA, Argentina, Mexico

Parliament/Semi-presidential republic:Russia, India, Germany

Other forms? Tyranny, Socialist


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Forms of State Structure

Single state

one legal systemapplicable over theterritory.

Eg. France, Thailand,Japan

Federation

a union of partially self-governing states orregions united by a central(federal) government.

Eg. India, USA, Australia,

Russia


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Political Regimes of State

Democratic method

supreme power belongsto the people, isexecuted by the peopleor by those elected bythe people. Majorityvote. Freedom of

speech. Nodiscrimination on sex,race or else

Anti-democraticmethod

supreme power belongsto one or a group ofpersons. Eg.Dictatorship


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State Mechanism

A system of state agencies from central

to local, organized and operated in

general and united principles to perform

functions of the State Separation of powers:

Legislature branch

Executive branch Judicial branch


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The State of S.R.Vietnam (1)

A rule-of-law socialist state ofthe people, by the people and

for the people (as stated inConstitution 1992, amended2001)

All powers belong to the

people of which the foundationis the alliance of the workingclass, the peasantry and theintellectuals.


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State of Vietnam: History

Established since 1945

1945-1954: State of Vietnam Democratic Republic,mission: to fight against French colonists.

1954-1975: State of Vietnam Democratic Republicwith mission to liberate the South, unite the countryand construct socialism in the North.

1975-1986: State of Socialist Republic of Vietnam,mission to restore the country after the war.

1986-now: State of Socialist Republic of Vietnam,with mission to change and develop economy andsociety


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Natures:

The class nature

The social nature

The nationalist nature (minor) The peoples nature (minor)

Functions:

Economic development Political security, social order

Motherland defense

Friendship enhancement


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Form of State Governance: Republic

Form of State structure: Single State

Political system: socialist democratic

Communist Party

State of SRV central role

Vietnam Fatherland Front


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State Mechanism: a system of state agencies from centralto local, established by law in general and unitedprinciples, closely related and integrated for implementingfunctions and missions of the State agencies:

State powers: are organized and exercised in theprinciples of centralization in combination with separationof powers

State Agencies:

Head and representative of the State: President

State power agencies: National Assembly &Peoples Council

Administrative agencies: Government & PeoplesCommittee

Juridical agencies: Peoples Court

Procuracy agencies: Peoples Procurators


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State powers are organized and exercised in the

principle of centralization in combination with

separation of powers into 3 branches:

People

National Assembly(Legislature

Branch)

Peoples Court(Judicial Branch)

Government(Executive Branch)


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Both a political mechanism and an

economic managing organization

Socialist democracy

Instrument to build a society of

humanity, justice and equality

With nature of the working class


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Origin of Law

Divine theory

God created State, State created Law

Marxist-Leninist theory State and Law are two phenomenon together

emerging, existing, developing and diluting.

State and Law are social phenomenon with historicnature, as a product of a society with classes and

fights among classes Law is formed as State is formed, by the cause of

possession, class separation and fights amongclasses


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Origin of law (cont)

Primitive society: no State, no law

Social order is maintained by customs, practices,

ethics, religious beliefs

Society with classes: State and law emerged

Property possessing class becoming ruling class

Ruling class to create State and law by selectingcustoms, practices, religious beliefs favorable to themand setting new rules


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What is Law?

A set of rules to govern peoples

conducts in society, with binding effect

Created or adopted by State

Expressing the will of State

Guaranteed for enforcement by State

(by awareness enhancement, penalties,

punishments)


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Natures of Law

Law is established by State,thus reflecting the will of theruling class by rules applicable

to the society

The Classnature

Law is the instrument toorganize social life, thus

reflecting other classes will andbenefits in society with differentextents subject to the nature ofthat particular State

The Socialnature


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Main Features of Law

Regulatory and popular

Binding on everyone

Well defined in terms of format(well written, precise and accurate)


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Functions of Law

Governing social relations

Protecting social relations

Educating people


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Role of Law

As a means for the State to manage all

fields of life

As a means to protect legal rights and

benefits of citizens and other subjects oflaw

As the basis to complete the State

mechanism and enhance State powerAs the basis to contribute to establish

new relations


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State-Law Relation

State needs Law and issues Law to performState powers, but State is then subject to the

Law issued Law is the main instrument of the State to

manage society and requires State to use itspower to ensure Law is enforced.

Close relationwith mutual

impact

Sharing sameconditions foremergence,existence,

change anddilution

Sharing samenatures ofclass andsociety

Sharing samedevelopment

phases

Both aremeans of

political power


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Law-Economics Relation

Economics has decisive role towards law, while law is

relatively independent from economics and may impact

significantly economics

Economic relations are direct causes for the emergence

of law, deciding content, characteristics and structure oflaw

Change of economics will lead to change of law:

Economic structure defining structure of branches of law

Content of economic relations defining content of legal relationsand methodology of law

Economic regime, economic sectors defining legal authorities and

legal procedures

Law may either push or restrict economic development


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Law vs. Ethics

Both are rules with impacts to govern

peoples behaviors Law and ethics support and supplement to

each other, having a mutual depending

relation

Ethics includesunwritten rules based

on conscience andjustice, not attached

with powers andbinding effects

Law may be written orunwritten rules, basedon will of ruling class,binding to everyone


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Types of Law

Law of the Masters

Law of the Feudal

Law of Capitalism

Law of Socialism

As a collection of all fundamental and specific signs ofLaw, expressing its class nature and the conditions for it

to exist and develop, considered in the context of a

certain socio economic form


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Forms of Law

State adopts a number of customs in societyand makes them rules of conduct for everyoneto obey

Customary law

State adopts a number of decisions ofadministrative judicial agencies in resolvingcertain cases as standards to deal with similarcases

Case law

(Common law)

All legal documents (LEGISLATION) issued bystate authorities in certain orders andformalities, which includes general rules ofconducts, to be applicable in social life.

Statutory law(Civil law)

Ways adopted by the ruling class to make their will become law

Defining types of legal systems (Common law, Civil law,

Religious law)


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Common law vs. Civil law

Common law

Legal system with precedentcourt decisions as primary sourceof law (case law)

Originated in England in the

Middle Ages Adopted by UK,US

Court is bound to follow the samereasoning used in precedentialdecisions and has the authorityto make law by creatingprecedents for new cases

Decisions are decided by aneutral court and jury

Civil law

Legal system with codifiedlegislation as primary source oflaw (statutory law)

Inspired by Roman law

Adopted by European continentalcountries, expanded to Asia and

Africa in colonist time

Court to be inquisitive, unboundby precedents

Cases to be decided by trainedjudicial officers (and volunteer

jurors)

Statutory law in common law system? Case law used in civil law system? YES

Religious law: Islamic law (Ex: Libya, Iran, Saudi Arabia)

Pluralistic law: mixed legal system (Ex: Malaysia: common law + religious law,

Indonesia : civil law+ religious law, Thailand: civil law + common law)


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Legal System A set of all stipulations of law having relation with each

other, classified into branches of law and institutions oflaw, reflected in legal texts promulgated by stateauthorities

Improved from time to time

Structure: External: different levels of legislations (stipulations of law)

Internal:

Criteria for assessment:ComprehensivenessSuitabilityIntegrationLegal technical skills

Stipulationsof law

(Legislation)

Institutions oflaw

Branches oflaw

LegalSystem


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Stipulations of Law

Rules of conducts forwith binding effect,issued by Stateauthorities, guaranteed

by State for enforcement,to govern social relationsfor certain purposes

4 Types of Stipulations:

Definingstipulations

Compulsorystipulations

Prohibitingstipulations

Permittingstipulations


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Stipulations of law Structure: up to 3 parts in a stipulation of law with changeable order

Assumption

RuleSanction

Eg: A person seeing another person in a

situation which may be dangerous to his life,

failing to help though having conditions to do

so, which leads to the death of the other

person, then would be subject to penalty of

warning, rehabilitation up to 2 years or

imprisonment up to 2 years (Clause 1 Art 102

Criminal Code 1999)

Assumption: describing the circumstances (conditions, context) which

may happen in practice for those falling into the same to choose the

way to behave in accordance with law

Rule: describing the way to behave that those falling into the

circumstances in the assumption to follow

Sanction: describing the measures of the State to be applicable to

those failing to perform as guided in the Rule


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Institutions of Law

A branch of law includes several

institutions of law.

Eg.

Property and Ownership Rights; CivilTransactions are institutions of law

under Civil Law branch

Economic Regime, Political Regimeare institutions of law under

Constitutional Law branch


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Branches of Law

Constitutional Law

Administrative Law

Civil Law

Civil Procedures Law

Marriage and Family Law Criminal Law

Criminal Procedures Law

Land Law

Labor Law

Business Law International Law (Public Intl Law & Private Intl Law)


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Legal Texts (Legislation)

Documents issued by competent State authorities

in accordance with statutory order and procedures

Providing for general rules of conduct

Guaranteed by the State for implementation to

govern social relations in a certain oriented

direction.

Classified into:

(1) Laws (issued by National Assembly, including

Constitution, Codes, Laws)

(2) By-laws (issued by State Agencies except NA, with

less value than Laws, based on and in accordance with

Laws)


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System of Legal Texts

NA: Constitution, Code, Laws, Resolutions

NA Standing committee: Ordinances, Resolutions

President: Orders, Decisions

Government: Resolutions, Decrees

Prime Minister: Decisions, Directives

Ministries and equivalents: Decisions, Circulars, Directives, Inter-ministerial circulars

Court, Prosecutor: Resolutions of the Board of Judges, Decisions,Circulars, Directives

Other State agencies and socio-political organizations:

Resolutions, Inter-ministerial circulars Peoples Councils: Resolutions

Peoples Committees: Decisions, Directives


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System of Legal Texts

Constitution

Codes, Laws,Resolutions of NA

Ordinances, Resolutions ofNA Standing committee

Orders, Decisions of President

Decrees, Resolutions of GovernmentDecisions, Directives of Prime Minister

Circulars, Decisions, Directives of Ministries, agencies ofministerial level, Inter-ministerial circulars

Resolutions of the Board of Judges of the PS CourtDecisions, Directives, Circular of Chief Justice, Procurator General

Resolutions, Inter-ministerial circulars of other State agencies and orgs;Resolutions of Peoples Councils

Decisions, Directives of Peoples Committees


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Validity of Legal Texts

Validity in terms of time

The validity for enforcement of a legal text in a certain

period of time, calculating from the commencement of its

validity to the termination of the same

Validity in terms of space The validity for enforcement of a legal text in the territory

of a certain country, or a region, a locality.

Validity in terms of scope of impact

Those subject to a legal text shall include agencies,

organizations, individuals and legal relations governed by

that legal text


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Legal Relations

Relations arisen in social life, in which parties

involved shall have rights and obligations as

stipulated and guaranteed for implementation by

law

Characteristics of legal relations: will-driven

attached to a legal fact

emerged on the basis of stipulations of law

Composition of legal relations: Subjects

Objects

Content


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Subjects of Legal Relations

Individuals ororganizations with

full conditions as

stipulated by law

when involved in a

certain legal relation

Parties involved in a

legal relations, with

statutory rights and

obligations

Owners Capacity

required Legal Capacity

Behavior

Capacity

Legal Capacity

Capacity of a subject tohave legal rights andobligations as stipulatedby law

For Individuals: emerged

when born and dilutedwhen died or declareddead.

For organizations:emerged when dulyestablished andterminated when losingtheir legal status

Behavior Capacity:

Capacity of a subject toperform behaviors, realizeconsequences from suchbehaviors and bearresponsibilities for the

same. For individuals: capacity to

exercise ones statutoryrights and obligations byones behaviors (age,mentally healthy condition)

For organizations: dulyestablished, strictly

structured, with separateproperty and bearresponsibilities for thoseproperties, acting in itsown name independentlyin legal relations


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Objects of Legal Relations

Material or mental interests and other

social interests that the subjects wish to

achieve when engaging in a legal

relation


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Content of Legal Relations

Rights of subject

Capacity of subject to choosethe way to behave to theextent permitted by law, toachieve the set target and to

comply with stipulations of law Characteristics:

option to behave

option to request otherparties to perform respectiveobligation to respect ones

rights option to request stateagencies to protect onesrights when violated by otherparties

Obligations of subject

The compulsory behavior of asubject to meet the exerciseof the other partys rights

Characteristics:

requirement to performcertain behaviors,

restrictions on performingcertain behaviors,

legal responsibility for failureof performing compulsory

behaviors stipulated by law


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Legal Facts

Facts happened in practice, attached to

the formation, change or termination of a

legal relation

Classification based on will of subject Will of Subject: Behaviors vs. Events

Behaviors: Acts/omissions, legal/illegal

Consequences: forming vs. changing vs.terminating a legal relation


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Implementation of Law

As a process ofactivities tobring rules oflaw into life,make themlegal activitiesof subjects oflaw

4 forms ofimplementationof law

Compliance of law(Subjects not toengage certain

acts prohibited by

law prohibitingstipulations of law)

Enforcement oflaw (Subjects toengage certainacts to perform

obligations

required by lawcompulsorystipulations of law)

Use of law (Lawmay be used as

an instrument torealize legal rights

and benefitspermitting

stipulations of law)

Application of law(State authoritiesactivities to bring

legislations toparticular

circumstances andsubject matters incertain conditions)

Prohibitingstipulations

Permitting

stipulations

Compulsory

stipulations


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Breach of Law

Act that is (1) either action ornon-action of anindividual/organization (2) incontrary with law, makingharms to the relationsprotected by law, (3) withfault, (4) committed byperson with adequate legalcapacity

Types of breach of law:

Criminal

Administrative Civil

Disciplinary

Faults

Intentional

faults

Direct

Indirect

Unintentional

faults

Caused byextreme

confidence

Caused bycarelessness


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Legal Liability

A special legal relationbetween the State and

subjects in breach of law, in

which the State imposes

unfavorable consequences

and coercive measures onsubjects in breach of law

Basis of legal liability is breach

of law

Considered based on: breach

of law and limitation forprosecution

Classification:

Criminal legalliability

Administrative

legal liability

Civil legal liability

Disciplinaryliability

Material liability


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Socialist Legality

A regime of socio-political life, in which all

individuals,

organizations, agencies

shall respect and

implement regulationsof law in an equal,

voluntary, serious and

unified manner

A principle to organize

and operate statemechanism, socio-

political organizations

and to perform

behaviors of all citizens

Legality: principle of making all laws clear, ascertainable and non-retrospective.

To ensuresupremacy and

unity of Constitutionand laws,

to enhanceeffectiveness of all

branches ofpowers,

to promote a cultureof compliance with

law in society


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THE END