Author: Thai Do Thuy Ngoc, MBA, LLM International University

Origin of the State (1)

The Divine Theory The Patriarchal Theory The Social Contract Theory
The Natural Theory The Force Theory

Divine Theory
a system of divinity, founded wholly upon Christ; which, by one principle, offers an explanation of all the works of God
God created the State and established the order of society. He gave certain people the divine right to govern others.

Patriarchal Theory
Patriarchy: a social system in which the role of the male as the primary authority figure is central to social organization, and where fathers hold authority over women, children, and property. (implying the institutions of male rule and privilege and female subordination)

The family is the first constituent of the society. The State is like the father head of the family.

Social Contract Theory

The view that persons moral and/or political obligations are dependent upon a contract or agreement among them to form the society in which they live

The State is essentially a contract between people.

Natural Theory
Men have the urge toward being part of the community and being dependent on a leader.

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

Force Theory
State arose from use of force between clans. It is created by the winner to govern the loser. It happens in wars, where the strong dominated the weak.

Origin of the State (2)

Marxist-Leninist Theory

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.

Origin of the State (3)

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)

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

Natures of State
The class nature
As the instrument of the governing class to organize and conduct powers, the State will turn the ideas of the governing class to those of the State and require other classes to obey.
As a public power agency, the State will resolve matters of a civil society, conduct services for public benefits, protect public order, stability and social values (organization and management over social, economic and other fields).

The society nature

Features of State
Establish public power Divide population into administrative territory units Possess national sovereignty Promulgate law Collect tax Issue money

Functions of State

Are aspects of operations of the State to complete missions of the State expressing the role and natures of the State Are classified into:
Internal relations: social order maintenance,

economic regime protection External relations: national defense, diplomatic relations

Are conducted through forms of law construction (~legislature branch), implementation (~executive branch) and protection (~judicial branch)

Types of State
As a collection of all fundamental 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

State of the Masters

State of the Feudal

State of Capitalism State of Socialism

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

Forms of State Governance

Monarchy All political powers of the State is passed down to an individual (head of State) and will be transferred based on the principle of hereditary. Absolute monarchy: Brunei, Swaziland Constitutional monarchy: Cambodia, Thailand, UK
Other forms? Tyranny, Socialist

Republic Political powers of the State belongs to a high level organ elected by the people for a defined term. Presidential republic: USA, Argentina, Mexico Parliament/Semipresidential republic: Russia, India, Germany

Forms of State Structure

Single state
one legal system applicable over the territory. Eg. France, Thailand, Japan

Federation
a union of partially selfgoverning states or regions united by a central (federal) government. Eg. India, USA, Australia, Russia

Political Regimes of State

Democratic method
supreme power belongs to the people, is executed by the people or by those elected by the people. Majority vote. Freedom of speech. No discrimination on sex, race or else

Anti-democratic method
supreme power belongs to one or a group of persons. Eg. Dictatorship

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

The State of S.R.Vietnam (1)

A rule-of-law socialist state of the people, by the people and for the people (as stated in Constitution 1992, amended 2001) All powers belong to the people of which the foundation is the alliance of the working class, the peasantry and the intellectuals.

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 Republic with mission to liberate the South, unite the country and 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 and society

The State of S.R.Vietnam (2)

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

The State of S.R.Vietnam (3)

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

The State of S.R.Vietnam (4)

State Mechanism: a system of state agencies from central to local, established by law in general and united principles, closely related and integrated for implementing functions and missions of the State agencies: State powers: are organized and exercised in the principles of centralization in combination with separation of powers State Agencies: Head and representative of the State: President State power agencies: National Assembly & Peoples Council Administrative agencies: Government & Peoples Committee Juridical agencies: Peoples Court Procuracy agencies: Peoples Procurators

The State of S.R.Vietnam (5)

State powers are organized and exercised in the principle of centralization in combination with separation of powers into 3 branches:

People

Government (Executive Branch)

National Assembly (Legislature Branch)

Peoples Court (Judicial Branch)

The State of S.R.Vietnam (6)

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

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 historic nature, 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 among classes

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 selecting customs, practices, religious beliefs favorable to them and setting new rules

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)

Natures of Law
The Class nature
Law is established by State, thus reflecting the will of the ruling class by rules applicable to the society

The Social nature

Law is the instrument to organize social life, thus reflecting other classes will and benefits in society with different extents subject to the nature of that particular State

Main Features of Law

Regulatory and popular

Binding on everyone

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

Functions of Law
Governing social relations
Protecting social relations Educating people

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 of law As the basis to complete the State mechanism and enhance State power As the basis to contribute to establish new relations

State-Law Relation
Close relation with mutual impact Sharing same conditions for emergence, existence, change and dilution Sharing same natures of class and society Sharing same development phases Both are means of political power

State needs Law and issues Law to perform State 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 its power to ensure Law is enforced.

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 of law 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 relations

and methodology of law Economic regime, economic sectors defining legal authorities and legal procedures

Law may either push or restrict economic development

Law vs. Ethics

Ethics includes unwritten rules based on conscience and justice, not attached with powers and binding effects Law may be written or unwritten rules, based on will of ruling class, binding to everyone

Both are rules with impacts to govern peoples behaviors Law and ethics support and supplement to each other, having a mutual depending relation

Types of Law
As a collection of all fundamental and specific signs of Law, expressing its class nature and the conditions for it to exist and develop, considered in the context of a certain socio economic form

Law of the Masters

Law of the Feudal Law of Capitalism Law of Socialism

Forms of Law
Ways adopted by the ruling class to make their will become law Defining types of legal systems (Common law, Civil law, Religious law)
State adopts a number of customs in society and makes them rules of conduct for everyone to obey State adopts a number of decisions of administrative judicial agencies in resolving certain cases as standards to deal with similar cases All legal documents (LEGISLATION) issued by state authorities in certain orders and formalities, which includes general rules of conducts, to be applicable in social life.

Customary law

Case law (Common law) Statutory law (Civil law)

Common law vs. Civil law

Common law Legal system with precedent court decisions as primary source of law (case law) Originated in England in the Middle Ages Adopted by UK,US Court is bound to follow the same reasoning used in precedential decisions and has the authority to make law by creating precedents for new cases Decisions are decided by a neutral court and jury Civil law Legal system with codified legislation as primary source of law (statutory law) Inspired by Roman law Adopted by European continental countries, expanded to Asia and Africa in colonist time Court to be inquisitive, unbound by precedents Cases to be decided by trained judicial 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)

Legal System
A set of all stipulations of law having relation with each other, classified into branches of law and institutions of law, reflected in legal texts promulgated by state authorities Improved from time to time Structure:

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

Stipulations of law (Legislation)

Institutions of law

Branches of law

Legal System

Criteria for assessment:

Comprehensiveness Suitability Integration Legal technical skills

Stipulations of Law

Rules of conducts for with binding effect, issued by State authorities, guaranteed by State for enforcement, to govern social relations for certain purposes
4 Types of Stipulations:

Defining stipulations Compulsory stipulations Prohibiting stipulations Permitting stipulations

Stipulations of law

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

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

Sanction

Rule

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

Institutions of Law
A branch of law includes several institutions of law. Eg. Property and Ownership Rights; Civil Transactions are institutions of law under Civil Law branch Economic Regime, Political Regime are institutions of law under Constitutional Law branch

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)

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)

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, Interministerial 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

System of Legal Texts

Constitution Codes, Laws, Resolutions of NA Ordinances, Resolutions of NA Standing committee

Orders, Decisions of President

Decrees, Resolutions of Government Decisions, Directives of Prime Minister Circulars, Decisions, Directives of Ministries, agencies of ministerial level, Inter-ministerial circulars Resolutions of the Board of Judges of the PS Court Decisions, 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

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

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

Subjects of Legal Relations

Individuals or organizations 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 to have legal rights and obligations as stipulated by law For Individuals: emerged when born and diluted when died or declared dead. For organizations: emerged when duly established and terminated when losing their legal status

Behavior Capacity:
Capacity of a subject to perform behaviors, realize consequences from such behaviors and bear responsibilities for the same. For individuals: capacity to exercise ones statutory rights and obligations by ones behaviors (age, mentally healthy condition) For organizations: duly established, strictly structured, with separate property and bear responsibilities for those properties, acting in its own name independently in legal relations

Objects of Legal Relations

Material or mental interests and other social interests that the subjects wish to achieve when engaging in a legal relation

Content of Legal Relations

Rights of subject Capacity of subject to choose the way to behave to the extent permitted by law, to achieve the set target and to comply with stipulations of law Characteristics: option to behave option to request other parties to perform respective obligation to respect ones rights option to request state agencies to protect ones rights when violated by other parties Obligations of subject The compulsory behavior of a subject to meet the exercise of the other partys rights Characteristics: requirement to perform certain behaviors, restrictions on performing certain behaviors, legal responsibility for failure of performing compulsory behaviors stipulated by law

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

Implementation of Law

As a process of activities to bring rules of law into life, make them legal activities of subjects of law 4 forms of implementation of law

Prohibiting stipulations Compliance of law (Subjects not to engage certain acts prohibited by law prohibiting stipulations of law)

Compulsory stipulations

Enforcement of law (Subjects to engage certain acts to perform obligations required by law compulsory stipulations of law)

Use of law (Law may be used as an instrument to realize legal rights and benefits permitting stipulations of law) Permitting stipulations

Application of law (State authorities activities to bring legislations to particular circumstances and subject matters in certain conditions)

Breach of Law

Act that is (1) either action or non-action of an individual/organization (2) in contrary with law, making harms to the relations protected by law, (3) with fault, (4) committed by person with adequate legal capacity Types of breach of law:

Faults

Intentional faults

Unintentional faults Caused by extreme confidence

Direct

Criminal Administrative Civil Disciplinary

Indirect

Caused by carelessness

Legal Liability

A special legal relation between the State and subjects in breach of law, in which the State imposes unfavorable consequences and coercive measures on subjects in breach of law Basis of legal liability is breach of law Considered based on: breach of law and limitation for prosecution

Classification:
Criminal legal liability Administrative legal liability

Civil legal liability

Disciplinary liability

Material liability

Socialist Legality

A regime of sociopolitical life, in which all individuals, organizations, agencies shall respect and implement regulations of law in an equal, voluntary, serious and unified manner A principle to organize and operate state mechanism, sociopolitical organizations and to perform behaviors of all citizens

To ensure supremacy and unity of Constitution and laws,

to enhance effectiveness of all branches of powers,

to promote a culture of compliance with law in society

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

The Rule of Law

Common sense: no one is above the law and no one can be punished except for the violation of law Not an organization of powers but an order of law, for law to hold the ruling position in society over all individuals, organizations including State State adopts separations of powers and acknowledges the compliance of State and all State agencies to the law

* State is bound by law * Social relations are governed by law, ensuring the supremacy of laws over other legislations * State is into expanding freedoms of people * State to have effective mechanism to protect those involved in social relations * Citizens are to be liable before State and so is State before its citizens

Rule of Law vs. Rule by Law Under the rule of law the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law can serve as a mere tool for a government that suppresses in a legalistic fashion.

THE END