LESSON 2

The Origin of State and Law

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 I. Origin of State
• These are the theories on the origin of state as have been
formed and developed as a result of the political thought and
philosophy in the ancient time until the enlightenment period
in Europe.
1. Natural Theory
2. Patriarchal Theory
3. Force Theory.
4. Divine Right Theory.
5. Social Contract Theory.
6. Marxist theory
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• I.1. Natural Theory. The social
urge of the human being to be
within a group of people in
the community as in sociology
describes that “man is a social
being.” The social group
provides the political
development to stay and
work together with common
standard law in the
community later on transform
as a state.
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• I.2. Patriarchal
Theory. The
origin of the state evolves
from the enlargement of
family under the authority
of the parents or the
elders. Later on, it will
develop into a tribe,
kingdom then state.
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•I.3. Force Theory. The
creation of the state
through the constant
war and invasion of the
great warriors in the
ancient time dominated
the weak that later on
formed a state.

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• I.4. Divine Right Theory. The
rulers of the past advocated the
political dominance of authority
and power through their own
ordained mandate that they
represented the state as on the
basis of the divine right ( as God
created the state).It was in this
nature that the divine rights of
kings has the absolute power
and influence over the subjects.
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• I.5. Social Contract Theory.
This is the right of the
people to have the
deliberate and voluntary
contract on the right to
overthrow the kings and
rulers against corrupt
governance to organize a
new government with
common interest for all the
people

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I.6. Marxist Theory
•Max, Engels have divided the
development of society into
-old communist social system,
- slave society,
- feudal society
- and industrial society.

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•In the old communist
society there was no
state because there
was no existence of
private property.

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• The system of private property
worked as a potential cause of
the rise of state.
• The owners of private property
felt insecurity as to its
protection and they felt the
necessity of a super power
which could provide protection
ultimately.

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• How the system of private property
helped the creation of state?
(1) As soon as there was private property,
two classes of men there appeared—one
was the owner of property and the other
was without property.
• (2) The conflict between them became
prominent. Property owners wanted to
subjugate the other class.
• (3) Property owners created a force
within the society and this force
ultimately assumed the status of state.
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• From the study of history Marx
and Engels have concluded that
the state—for all practical
purposes—was set up in the
slave society. Because in the
slave society there were mainly
two classes—the owners of
slaves and the slaves
themselves. The owners of the
slaves required an organisation
to control and dominate slaves.
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• Marxist theory contends
that the economic crisis of
feudalism forced the
aristocracy to adapt
various centralized forms
of organization so they
could retain economic
power, and this resulted in
the formation of the
modern state
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• Engels in his The Origin
of Family, Private
Property and State has
elaborately analysed the
origin and development
of state. The state is not
something coming out of
the society. It is rather
the product of society.

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• People inhabiting in society laid the
foundation of state for the realisation
of their class interests.
• What is the class interest and how
could the state fulfil this?
Engels in this book has categorically
stated that the interests of the owners
of property are at diametrically opposite
to those who are not the owners;
because of this there were clashes of
interests between these two classes and
the interests were irreconcilable
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•At the same time there
developed an animosity
between these two
classes and again this
antagonism could not be
settled. All these led to a
situation which
necessitated a state
structure.
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• The owners of the property
came to be regarded as a
separate class whose sole
aims were to control the
persons who were not the
owners of property and to
devise a mechanism whose
chief function would be to
help the property owners.
The state in this way was
created as a public power
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• The man-made state had two
main functions—to provide
security to the owners of
wealth or owners of means of
production and to collect taxes
from the members of society.
• Engels has further observed
that though the state is the
product of society, slowly but
steadily it became the owner
of enormous power and it
stood above society.
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• But though the state stood above
the society it was always friendly
with the owners of property. We,
therefore, conclude that the state is
the outcome of human contrivance
and was made with specific aims. It
is now clear that according Marx
and Engels the origin of the state
has nothing to do with the social
contract or the divine right theory.
They have analysed the origin
purely from materialistic point of
view. 19
 II. Models of the Marxist Theory of State
• The Marxists have
discovered two models
of the Marxist theory of
state. One is
instrumentalist model
and the other model is
relative autonomy
model which is in
opposition to the other
model.
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• II.1. The Instrumentalist
Model:
• According to Marx and Engels
the state was created to
safeguard the economic
interests (other interests are
also included but economic
interests are primary) and
ultimately the state (along
with its police, military and
bureaucracy) was converted
into an instrument used by
the owners of property. 21
• From this special role of the state
the Marxists have deduced a
particular model of Marxist theory
of state which is called the
instrumentalist model.
• The core idea of this model is the
state is used as an instrument for
the fulfilment of interests of a
particular class or section of
society.
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II.2. Relative Autonomy Model:
Definitions
• The relative autonomy model,
in simple language, means
that though the capitalist state
works as an instrument at the
hands of the dominant class
that is the bourgeoisie, it very
often exercises its power
independently.
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• That is, the state is not always
dictated by the capitalists. The
independent functioning of the
state away from the influence of
the economically dominant class
is interpreted by the renowned
Marxists as the relative
autonomy of state.
• Hence the words relative
autonomy do not mean that the
state always acts independent of
dominating class.
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III. Sources of Law
•There are numerous sources of law,
including
•constitutions,
•legislatures,
•executives, judiciaries, administrative
agencies,
•and international organizations.

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 SOURCES of LAW

Law in UK

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Law in UK

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SOURCES of LAW

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SOURCES of LAW

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 SOURCES of LAW

US Model

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 Sources of Law

UK model

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SOURCES of LAW

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 III. SOURCES of LAW
III.1. Customary law
In many countries around the world,
customary law is regarded as a source of law.
However, Vietnam has applied only written
law (normative legal documents) and
disregarded customary law as an official legal
source.
Many people argue that Vietnam should
recognize only normative legal documents to
ensure the supremacy of legislation and its
unity, and unanimity of its application.
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 SOURCES of LAW
• However, the recent
debate about Vietnam
recognizing customary law
is particularly significant.
By adopting customary law
as a source of law, Vietnam
would solve a number of
the shortcoming of its
current legal system.
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• In 1986, Vietnam decide to
reform the economy under a
new policy: The Doi moi (
Renovation) policy, starting
with allocating cooperative
land to householders.
• To implement the Doi moi
policy, Vietnam would need
to build a new legal system,
and began by amending the
Constitution 1959. As a
result, the 1980 Constitution
was enacted.
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• Since 1990s, customary law
has attracted more
attention form Vietnamese
government.
• The reasons for this are
related to changes in
economic and social
conditions in Vietnam.

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• With Doi Moi policy in place in
1986, Vietnam’s economy has
moved from a centrally
planned economy to a multi-
sectors economy.
• The economic reforms have led
to social and legal changes.
There are, for example, a
number of civil and commercial
relations that now occur for
which there is regulation in
place. This situation is on going.
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• Dues to the changes in economic
relations, social relations ( such as
inheritance, marriage and family, civil
transactions and land use) have also
changed.
• The state law, with its aging
regulations, could not be expected to
be able to cover all the new social
relations that are occurring.
• To some extent, in social relations
where state law does not reach,
customary law may dominate.
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• Customary law, in this
special circumstance,
became an important source
for the regulation of such
social relations.
• Customary rules are
spontaneously applied in the
social fields of Indigenous
peoples, such as those
involving land and forest
management; ownership
rights; property disputes;
issues of marriage…
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• Customary law offers not
only rules for social relations
but also dispute settlement
methods that are mutually
agreed upon and
implemented voluntarily by
all members of the
community.
• In practical terms
customary law is the first
choice for dispute
settlements in minority
ethnic communities.
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• Customary law also
involves social agreement
in order to preserve and
protect community’s
society and culture.
• Hence Customary law is
and essential factor in
minority society.

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• However, customary law
remains a controversial issue.
• Although Vietnamese legislators
consider customs and village
conventions as social norms,
other people argue that
customary law and village
conventions are one of
Vietnam’s cultural values, and
that they are law created by
communities to regulate social
relations occurring in localities.
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• Customary law has
shortcomings because it
is local and unwritten.
Although state law has
several regulations
related to village and
hamlet activities, village
people principally follow
customary law and village
conventions, ignoring
state law.
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• This attitude of
ignoring state law
stems from traditional
custom of Phep vua
thua le lang ( where
the rule of the king
give way to customary
law).
• In many civil disputes,
customary law is
applied instead of
state law.
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• Similarly, customary law also
deeply influences marriage
and family relationships.
• For instance, according to
the Cham People, marriage
(and divorce) shall be
permitted by arrangements
made by the parents of the
couple and the customary
council of the community.

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• With customary law,
individual rights are not
given sufficient
consideration in
communities.
• Members of the
community may nor
aware of the their
individual rights because
they believe that all rights
belong to the community.
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• The state tends to harmonize
customary law with state law.
• The approach is to align
customary law with state law
while preserving and
upholding traditional values
and abolishing unsound
customs (such as polygamy,
marriage between related
persons)

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• In order to allow the
development of individual
character, uphold values of
customary law, and abolish
unsound customs that are
not appropriate for
modern society, a
collection of relevant
statistics and classification
of customary law is
essential.

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•Customary law can
then be
systematically
evaluated and
compared with state
law, while also
ensuring the
necessary degree of
social security and
national unity.
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• Facing social reality, the Vietnamese
government has taken initial steps
towards recognizing customary law,
starting with further amendments
of the constitution.
• Article 5 of the 1992 Constitution
provides: “Every nationality has the
right to use its own language and
system of writing, to preserve its
national identity, and to promote
its fine customs, habits, tradition
and culture.
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• With this basic
regulation, essentially
and itinerary for the
recognition of customary
law, a new chapter in
Vietnamese legal history
has opened. This issue is
also provided in the
Article 5 of the 2013
Constitution.
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• The law on Marriage and Family
2000 is considered as an important
step in the recognition of
customary in the field of marriage
and family.
• Article 6 of the Law on marriage
and Family (2000)provides: “In the
marriage and family relationship,
customary laws which express
national traditions and comply
with the principles of the law on
Marriage should be applied”.
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• The most prominent
evidence for the recognition
of customary law can be
seen in the Civil Code 2015
and Commercial Law 2005,
customary law and
practices shall be applied in
commercial activities pre-
established between parties
and in commercial activities.

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• The Civil Code also contains
several regulations relating to
customary law recognition. In
regard to civil transactions, Civil
Code 2015 provide:
• 1. A civil transaction shall be
effective when it satisfies all of
the following conditions:
• a) Participants in the transaction
have legal personality and/or legal
capacity in conformity with such
transaction;
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• b) Participants in the transaction
act entirely voluntarily;
• c) The purpose and contents of
the transaction are not contrary
to the law and/or social ethics.
• 2. The forms of civil transactions
shall be the conditions for its
effectiveness in cases where it is
so provided for by law. ( article
117)

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• It can be seen that Vietnam
has taken initial steps to
recognize customary law
as a source of law in its
legal system.
• Although state law has
advantages, it also has
certain drawbacks. More
sources of law are needed
to support and improve the
legal system.
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• The diversification of sources of
law, in particular the recognition
of the customary law, is vital for
improving the nation’s legal
system.
• By using customary law as a
source of law, Vietnam will
meet the requirements for
addressing new social relations
that are involving and ever
more rapidly in Vietnam’s
contemporary society. 58
In recent years, the return of customary
law has been heralded in normative
legal documents and has awakened
scholars to the possibility of customary
law recognition.
In addition, the potential application of
precedents would be remarkable
because judicial precedents are usually
considered to possess merits that make
the legal system certain, predictable
and stable.
A diversity of sources of law could
benefit Vietnam’s development.
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 IV. Private or public Law?
• Public Law
• Areas of law that involves
matters related to the state:
• Constitutional law: e.g. role and
power of the institutions within
the state
• Administrative law: e.g. regulates
public authorities, accountability
of public authorities
• Criminal law: state responsible
for prosecution and justice
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 examples
• Government ministers
decision on the expansion
of a motorway.
• Local authority planning
permission powers.
• Government ministers
powers.

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Private Law: law that affects matters between individuals
(whether people, groups of people or companies)
• Contract
• Family
• Tort
• Property

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 V. Civil or criminal law
• Civil law: focus on
compensating/
protecting the victim
• Regulates rights, duties
and liabilities between
individuals. Eg.
• Contract
• Family
• Property
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 V. Civil and criminal law
Criminal:
• Concerns duties which
individuals owe to the state.
Usually leads to punishment

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 VI. Properties of Law
• State Law
- Vietnam Follow the paradigm of legal centralism in
which the only law is state law.
- State law is a system of rules of conduct,
expressing the ruling class’s will and the leader
ship of Communist Party of Vietnam
- Law is issued and assured of implementation by
being enforced with the support power of the
state
- Law therefore, differs from other social norms,
such as customary law and religious law.

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Properties of Law
• According to the Vietnamese
legislators, law
-is a stable and unified system,
- possesses a universal
normative character and a
defined form,
with adherence supported by
state coercion.

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 Properties of Law

• The normative character of the law

expresses the scope in which subjects
are able to conduct themselves freely
in the permitted domain. Going
beyond this scope would be
considered breaking the law
• The state will provide for the social
activities or behaviours that it
considers the most logical and
through law, make them mandatory
for every subject in the nation.
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 Properties of Law
• It is not only law that possesses
normative character. Other norms are
also normative. However, the
difference between law and other social
norms is its regulatory scope. For
instance, customary law may be able to
have an impact on subject in a certain
locality whereas (state) law can be
applied to every individual, organization
and entity in the country.
• The regulatory scope of law therefore is
far wider than that of social norms.
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 Properties of Law
• The second attribute of law is the
defined form in which law should be
expressed, namely in an external,
concrete, written-form, such as
normative legal documents ( Acts,
Ordinances and Decrees, and so forth)
• In addition legal regulations (the
content of law) should be written in
legal language and be accurate, clear
and unambiguous so that it is able to be
understood and applied without delay.
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 Properties of Law

• The final characteristic of

state law is state coercion.
By the power of state, law
provides compulsory rules for
ever subject in a wide range of
activities and behaviours. State
law applies across the entire
nation, not just to a specific
part.
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 Properties of Law
• Along with the prevailing concept of law,
the political regime also exert an
important influence on the Vietnamese
legal system. Law is the means to
institutionalise the policies of the
Communist Party of Vietnam. Hence Law
originates from its policies.
• The mission of law is to ensure the
leadership of the Communist Party of
Vietnam and, at the same time. Law is the
framework for the activities of the Party
and of other bodies. 71
 Properties of Law

• The state, with its role

of social management,
uses law as an
essential means to
regulate social relation
in accordance with the
will of the ruling class.

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• Conclusion:
The modernization of the
state and law is a major
concern of Vietnamese
government.
The state and legal system of
Socialist Republic of Vietnam
has been established for
decades but due to political,
social and economic changes,
it has continuously improved.
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Questions
1. Present the various theories of the origin of state.
2. What are the main differences between Marxist theory and others
about the origin of state?
3. What are the sources of law?

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1. According to the Patriarchal Theory the origin of
State evolve from the enlargement of

1.Social group
2.Family under the authority
of the parents
3.Army
4.Company

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2. According to the Natural Theory the origin of
State evolve from the enlargement of
1.Social group
2.Family under the authority of the
parents
3.Army
4.Company

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3. According to the Force Theory, States are
created through
1. Social group activities
2. Families under the authority of the parents
3. Constant wars and invasions
4. Companies

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According to the Divine Theory, States are
created by
1. Social groups
2. Family under the authority of the parents
3. God
4. Company

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According to the Social Contract Theory , States
are created by
1. Social group activities
2. Family under the authority of the
parents
3. Wars and invasions
4. People who organize a new
government with common interest

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According to the Marxist Theory, the system of
private property
1. Destroys social group
2. Is dangerous
3. Create army
4. is a potential cause of the rise of
state

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 Public Law includes

1. Constitutional Law, Administrative Law,

Civil Law
2. Property Law, Administrative Law, Civil
Law
3. Constitutional Law, Administrative Law,
Business Law
4. Constitutional Law, Administrative Law,
Criminal Law

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Private Law includes
1. Constitutional Law, Administrative Law,
Civil Law
2. Property Law, Administrative Law, Civil
Law
3. Law of Contract, Law of Tort, Law of
Property and Family Law
4. Constitutional Law, Administrative Law,
Criminal Law

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According to the Vietnamese legislators

• 1. Law is a stable and unified system

• 2. Law is a system of customs
• 3. Law possesses multiple normative
character
• 4. Law is a system of social contracts

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The content of Law
• 1. May be expressed freely.
• 2. Should be written in legal
language.
• 3. Should be written in various
manners.
• 4. May be modified freely

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Vietnamese Law
1. Is supported by state coercion
2. Applies to a specific part of country
3. Is a unstable and diversified system
4. Is a system of relations

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In Vietnam, Customary rules
1. Are applied in social fields of
indigenous people.
2. Are disregarded by the legislators.
3. Are a unified system.
4. Dominate all social relations.

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In Vietnam the State tends to
1. Abolish Customary Law.
2. Recognize all Customary Rules.
3. Harmonize Customary Law with State
law.
4. Apply Customary Law only for family
relationships.

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