Lecture 1: Meaning and basic concepts of law

1. Definition
- (18th Cent) Law is a commands set by a sovereign or superior being to an inferior being
and forced by sanctions.
- (19th) Law was an instrument used by the wealthy class to dominate and exploit the
weaker and laboring class
- Prof Harts (20th) Law is a necessary tool to regulate and protect the collective interests
of the society
- Salmond (20) Law is a body of rules or principles recognized and applied in the
administration of justice.

 Generally law can be described as a set of rules, developed over a long period of time
that regulates interactions that people have with each other, and which sets standards of
conduct between individuals and the government and which is enforceable through
sanction.
Main points: a set of rules/ regulation interaction between people/parties/ enforceable
through sanction( sự phê chuẩn)/ authority of the government.

2. Differences and relationships between the law, morality and ethics?

- Morality is the sense of judgement between right and wrong to certain standards developed by
society over time. It consists of values, principles, beliefs, customs, ways of living.
- Ethics gives us a sense of what’s good, right, and meaningful in our lives. It consists of values,
principles and purposes.
- Morality/ethics are not bindings, enforceable and have sanctions. They are binding on the
conscience of the members of the society.
- Uniformity: The law is based on morality and ethics; it incorporates a significant proportion of
morality and ethics.
- Contradiction: certain wrongs in society contravene morality/ethics but not the law (disrespect,
failure to provide for parents…); the existence of unjust laws (enforcing slavery or legalizing
abortions) proves that morality/ethics are not identical and do not coincide.

3. Roles/ functions of law

- Maintain social order and stability
- Promote justice, fairness, human rights and freedoms
- Resolve conflicts and disputes
- Promote desirable social and economic behavior
- Promote the development
- Present the will of the people and minorities
- Control and structure public power
- Express society’s moral values
 LAW AS NOT ONLY TO PROVIDE SANCTIONS, TO MAINTAIN SOCIAL ORDER, BUT ALSO TO PROMOTE
THE DEVELOPMENT AND VALUES

4. Division of law
- Criminal law( luật hình sự): Offences against the state( punishment) & Civil Law( luật dân sự): It
concerned with the right and duties of individuals towards each other(remedy)
- National Law & International Law
- Public Law( luật công): Law which governs the relationship between individuals and the state &
Private Law(luật tư): matters that affect the rights and duties of individuals amongst themselves.
- Substantive Law(luật nội dung): Deals with rights, duties, liberties, power and all other matters that
are not matters purely on practice and procedure & Procedural Law( luật tố tụng): It relates to the
enforcements of rights and duties.
 Lecture 2: Source of Law
1.Introduction to Sources of Law
* Definition
-Sources of law mean the sources from where law originates (the origin of law). In other
words, law is derived from sources
-Jurists have different views on the origin and sources of law, as they have regarding the definition of law
-Austin: Sovereign as the source of law (the divine right of kings)
-Savigny and Heny Maine: Customs as the most important source of law
-Theologians: Religious scripts as sources of law
-Natural law school: Nature and human reasons including justice, equality and liberty as the source of law;
law derived from the nature rather than from the rules of society, or positive law (law made by the society
or the state).
-Kark Max: Law originated from the wealthy class.
-People’s sovereignty: the will of the people as the most important source of law (law
made directly by the people or by their representatives – the legislature/parliament).
* Classification of legal sources
 Primary and secondary sources of law:
Primary: are actual binding law in the forms of constitutions, statutes,
administrative regulations, legal customs, judicial precedent, treaties…
Secondary: optional source of law including juristic writings, foreign decisions, religion, morality, ethics…
This source is applied if there is no primary law, or as additional ones.
 Formal and material sources of law:
Formal: is a source of law where the rule has legal power (constitutions, statutes, legal customs… even
justice, equality, morality in natural law.
Material: is a factor that helps the formation of the law (social relations, political power relations, socio-
economic situation, tradition or religious views, the research, international development…)
*3 major sources of law
-3 main sources: custom; judicial precedent; and legislation
-In the contemporary legal systems, most are based on legislations. At the same time customs play a
significant role. In many legal systems, courts decisions are binding as law.
-Constitution as the fundamental law of each country. It is a set of basic principles of rights and freedoms,
as well as the powers of the different branches of government (legislative, executive and judiciary).
Ex: The American Constitution, 1787; The Vietnamese Constitution, 2013.

Custom as a source of law

Custom can simply be explained as those long established practices or unwritten rules which have
acquired binding or obligatory character.
Custom, to be valid, must be long established practices or unwritten rules
have acquired bindings or obligatory character: a custom -> a legal custom/custom law
In ancient societies, custom law was considered as one of the most important sources of law (the real
source of law)
With the passage of time and advent of modern civilization, the importance of custom as a source of law
diminished and other sources such as judicial precedents and legislation become more important

2 views and the general development

• Austin opposed custom as law because it did not originate form the will of the sovereign
• Savigny considered custom as the main source of law because the real source of law is the will of the
people and not the will of the sovereign. The will of the people has always been reflected in the custom
and traditions of the society.
• General recognition of custom as a source of law: the will of the people, not of the authority; stability;
 voluntarily comply, no need for sanction…)
• In common law (as in UK): legal custom play a more important role in their legal system. Ex: A
constitutional custom (The monarchy does not take accountability; the monarch rule, but he/she holds
little or no actual power or direct influence).

Unwritten legal customs become written law

- Unwritten legal customs may be incorporated in the law enacted by the State.
Ex: Hindu Women’s Right To Property Act, 1937 (amended in 2005).

Judicial precedent as a source of law

• Judicial precedent refers to previously decided judgments of the superior courts, such as the High
Courts and the Supreme Court, which judges are bound to follow.
• Judicial precedent is an important source of law, but it is neither as modern as legislation nor is it as old
as custom.
• It is an important feature of the English legal system as well as of other common law countries which
follow the English legal system.
• In most of the developed legal systems, the judges are competent to interpret the law to decide the
case, and by this exercise, they lay down new principles and rules which are general binding on lower
courts within a legal system.
Importance of precedent as a source of law
- Final settlement of an issue (outcome of justice)
- Bring certainty (judicial procedures and principles)
- Bring flexibility to law
- Contribute to the development of law
- Help in guiding lower courts

If precedent is law, does it mean that judges make law?

Two views and the general development
- The courts do not make law, which are enacted by the legislature. The court they simply interpret the
existing law (interpret what the law is). Judges are not law-givers, but they discover law.
- The courts interpret the law to solve the cases, and by this exercise, they lay down new principles and
rules, therefore, it is argued that the courts actually make law. While interpreting the law enacted by the
legislative bodies, the courts contribute to the existing body of law.
- Judges do not make the law in the same manner in which, legislative bodies do. Judges work in a given
legal material passed as law by the legislature. While declaring the law, they interpret the law and play a
creative role, By this creative role, they contribute significantly to the development of law (the law is not
amended by the courts, but developed by them.
Legislation as a source of law
- In modern times, legislation is considered as the most important source of law.
- The term 'legislation' is derived from the Latin 2 words, “legis” and “latum”. The former means law and
the latter means to make.
- Legislation consists in the declaration of legal rules by a competent authority (often by the legislature,
who may delegate its power to the government).
- Legislation forms: Acts; Statutes; Law

Administrative regulations as an important source of law

- Laws passed by the legislature are in general and are left to further clarification by the government
- More importantly, the Government and other state agencies adopt rules and regulations to
implement the laws
- Administrative regulations must be not contrary to the Constitution and laws
Primary Sources of Law in the United States
1. Constitution
2. Federal and State Statutes
3. Administrative Regulations
4.Case Law

Treaties as a more and more important source of law

- The host country may be subject (or may be about to become subject) to laws made by a regional
or world grouping by becoming a signatory to a treaty.
- Examples are the laws of the European of Union, trade treaties, rules of the WTO and
bilateral treaties.
- Treaties/international law are superior to law. If there is a conflict of international law and law,
international law prevail. However, International law is under the Constitution.
- International law may have direct or indirect application:
+ Direct: they are direct sources of law as national law
+ Indirect: they must be imported into national law.

Sources of law in Vietnam

- Written legal normative documents are primary sources of law. Custom is limited in civil and
trade cases while there is no written law. Precedent is not fully recognized.
- Legal normative documents:
+ Constitution
+ Treaties that Vietnam is a member state (indirect application)
+ Laws enacted by the National Assembly
+ Other legal normative documents adopted by a series of state agencies from the central to the local
(the President; the Government; the prime minister; the ministries; local authorities…) to implement and
clarify the law.
- Custom: only a source of civil and commercial law (not be applied in public law).
- Precedent: not officially recognized in Vietnam. A Similar form of precedent is the summary of the
typical precedents a guiding source of law for lower courts.

Please name at least an actual source of law in the list of the legal sources in Vietnam
- Constitution (Ex. Constitution, 2013)
- Law on Access to Information, 2018)
- Decree 100/2019 / ND-CP on administrative sanctions in the field of traffic and railways, dated
30/12/2019.

Why are customs and precedents not fully recognized in Vietnam?

- Vietnamese legal system as a civil law tradition/system: uphold the priority of the written source of
law
- The views:
- Law presenting the will of the people must be approved by the National Assembly
- Judiciary applies and declares the law, but not competent to interpret the law
- Practices: Judges are not qualified and independent
 LECTURE 3: THE RULE OF LAW

1. Concept
- “The Rule of Law” - Pháp quyền/Nhà nước pháp quyền
- The expression “Rule of Law” has been derived from the French phrase “la principle de l’égalité”, i.e. a
government based on the principles of law.
- It was expounded for the first time by Sri Edward Coke, and was developed by Prof. A.V. Dicey in his book
“The Law of the Constitution” published in 1885.
- According to Edward Coke, “Rule of Law” means:
+ Absence of arbitrary power on the part of the Government
+ No man is punishable or can be made to suffer in body or good except for a distinct breach of law
established in the ordinary legal manner before the ordinary courts of the land
- As per Prof. A.V. Dicey: “The rule of law” means the absolute supremacy or predominance of the regular
law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness or even of
wide discretionary authority on the part of the government” (the Law of the Constitution)

2. Principle
According to Prof. Dicey, rules of law contains 3 principles or it has 3 meanings as stated below:
- Supremacy of law: “no man is punishable or can lawfully be made to suffer in body or goods except
for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.
- Equality before law: “no man is above law”
- Predominance of legal spirit: the general principles of the constitution are the result of judicial
decisions determining rights of private persons in particular cases brought before the court.
• The Rule of Law, in its most basic form, is the principle that no one is above the law. Law is
supreme, above everything and everyone. Nobody is above law.
• The rule follows logically from the idea that truth, and therefore law, is based on upon
fundamental principles, which can be discovered, but which cannot be created through an act of
will.
• It is the law and not the individual or group of individuals which rules or governs the people. All
actions must be according to Law and not according to whom.
• Every person, whatever be rank and condition, is subject to the ordinary law of the nation.
• The most important application of the Rule of Law is the principle that government must be
conducted within the framework of recognized rules which restrict discretionary powers.
• The principle is intended to be a safeguard against arbitrary governance, whether by a
totalitarian leader or by mod rule.
• Thus, the Rule of Law is hostile both to dictatorship and to anarchy.
• Discretionary powers should be exercised within reasonable limits set by law.
Violation of the basic principles of the rule of law
• 2 basic principles:
+ Absence of arbitrary power on the part of the local authority >< the Police violently forced the
citizen to Test for Covid-19 without reasonable legal bases. This act presented the will of the local
authorities, not the law.
+ No man is punishable or can be made to suffer in body or good except for a distinct breach of law
established in the ordinary legal manner before the ordinary courts of the land >< the violation of basic
human rights (right to be protected against violence or any treatment harming his or her body and health;
right to the inviolability of his or her domicile…).
• The question of the rule of law in a state of emergency. In emergencies, human rights may be
limited or derogated by special governmental measures. However, the problems arise that:
+It was not in a state of emergence
+ Even in an emergency, discretionary powers should be exercised within reasonable limits set by law.
What does the rule of law mean, and how does it affect our daily lives?
Nine American federal judges explain how fair and consistent adherence to the law protects our rights
and well-being in everyday situations like buying a breakfast sandwich, reading mail, and investing in the
stock market.

Summary of the American Judges’ views on the Rule of Law

• Key to the rule of law, the judges say, is a commitment to applying the law to everyone fairly.
• Other attributes include applying the law to government, not just individuals and entities;
• Making the law clear and legal proceedings transparent;
• and balancing individual rights against the safety of others.
• “Your right to swing your fist stops just short of my nose,” Judges Benton said. “And that’s what
the rule of law is meant to do, is to find that boundary.”
Pre-conditions for the Rule of Law
• Certain minimum standards for law conforming to emerging social standards.
• Absence of retroactive penal law.
• Fair and Just Procedure.
• Speedy Trial in Criminal Cases.
• Equal access to Law.
• Legal Aid to the Poor.
Pre-conditions for the Rule of Law
• Sound Legal Profession.
• Independent & impartial judiciary
• Authority of the Courts to test authorities’ actions, by the standards of legality

The World Justice Project Rule of Law Index

• The World Justice Project Rule of Law Index® is the world’s leading source for original,
independent data on the rule of law.
• Covering 128 countries and jurisdictions, the Index relies on national surveys of more than
130,000 households and 4,000 legal practitioners and experts to measure how the rule of law is
experienced and perceived worldwide.

The four Universal Principles of the Rule of Law (defined by WJP)

• Accountability: The government as well as private actors are accountable under the law.
• Just Laws: The laws are clear, publicized, and stable; are applied evenly; and protect fundamental
rights, including the security of persons and contract, property, and human rights.
• Open Government: The processes by which the laws are enacted, administered, and enforced are
accessible, fair, and efficient.
• Accessible and Impartial Dispute Resolution: Justice is delivered timely by competent, ethical, and
independent representatives and neutrals who are accessible, have adequate resources, and reflect
the makeup of the communities they serve.

The Eight Factors for the Rule of Law Index

• Constraints on Government Powers
• Absence of Corruption
• Open Government
• Fundamental Rights
• Order and Security
• Regulatory Enforcement
• Civil Justice
• Criminal Justice
Vietnam Rankings
• Vietnam’s overall rule of law score increased by less than 1% in this year’s Index.
• At 85th place out of 128 countries and jurisdictions worldwide, Vietnam fell two positions in
global rank.
• Vietnam’s score places it at 11 out of 15 countries in the East Asia and Pacific region and 11 out of
30 among lower middle income countries.
 Lecture 4: Major legal systems in the world

What makes a legal system?

• Sources of law and their hierarchy
• Law-making institutions (and their hierarchy)
• Law-enforcing institutions and their powers (mostly courts)
• Legal principles and concepts
• The organisation of the legal profession (the judiciary, the prosecutors, the lawyers)

National legal systems

• Each state has its own legal system.

• The structure and characteristics of these systems are highly variable.
• Many legal systems are organized on the basis of a written constitution (e.g. the United States), a
few have constitutional systems not resulting from a single written text (e.g. the UK); some dot
not have an explicit constitutional framework (e.g. Afghanistan)
• The relative position of statutory law, religious law, customs and case law varies greatly from one
country to another.

World’s legal systems

• It is possible to classify national legal systems into several groups, based on the existence of
common characteristics.
• Basic elements for distinguishing legal systems: sources of law; legal principles and concepts; and
tradition.
• Legal systems (groups): civil law; common law; religious law (Islamic law); customary law;
common law and civil law; mixed system; others.
• Other expressions: legal traditions; legal families.

Basic elements for distinguishing legal systems

a. Sources of law – what constitutes law in each legal system (statutes, customs, judicial decisions,
general accepted legal principles, the opinions of jurists…)
 Under Sources of law we explained that some countries will apply greater weight to certain sources
of law than others, and that some will put more emphasis on judicial decisions than others.
- Civil law systems place more emphasis on statutory law
- Common law systems gives a broader role to case law, which is considered to be the source of many
of its rules, and has developed complex technical instruments to apply, interpret and modify such case law.
b. The legal concepts and terminology used by each system
 This not a matter of language, but rather of ideas
 Concepts such as equity, or consideration, have a technical sense under common law which has no
exact equivalent in other legal system.
 On the other hand, many concepts used in civil law systems, but are not-existent or irrelevant in
other systems.
c. The legal tradition – the historical development of each national law
 Historical, civil law systems have been based on Roman law and on the codes enacted in
continental Europe;
 Common law systems are based on English common law;
 Legal systems from the Muslim tradition are based on Islamic law, etc.
Common law systems
• Common law (also known as judicial precedent or judge-made law, or case law) is a body of
unwritten laws based on legal precedents established by the courts.
 • Countries following a common law system are typically those that were former British colonies or
protectorates, including the United States, India, Canada, Australia.

• Features of a common law system include:

(a) authority of the judgments delivered by higher courts and tribunals;
(b) composition of judicial institutions;
(c) adversarial system of court proceedings, and the role of judge,
(d) the importance of Acts, Statutes, and other legislations passed by competent authorities.

a. Authority of the judgements delivered by higher courts and tribunals: the judicial precedents are
binding – case law
b. Composition of judicial institutions:
• The judges are highly skilled persons who have specially studied the discipline of law and possess
practical experience in legal administration either as advocates or judges.
• A judge, in other words, cannot be a lay person or even a scientist. He must be a person of legal
background, either as an advocate or a judge or at least with a degree in law;
• Legal education: a bachelor degree requirement for law student; legal experiences/practices as a
compulsory requirement to become a legal practionner (advocates/judges…)
c. Adversarial System of Court Proceedings and the role of Judge:
• The disputing parties engages advocates who act like adversaries in the court of law and each
advocate fights tooth and nail against the other in order to win the case.
• The judge in the court acts like a neutral observer listens patiently to the advocates of each party.
d. Acts, Statutes passed by Competent Authorities:
• Though the legislations passed by competent authorities such as the Parliament/legislatures are
given an authoritative place which is binding on the judges, whenever the judges find any gaps in
the Act or Statutes passed by the Parliament, they can make suitable interpretation to fill the gap
in these acts.
• In other words, the judges and advocates of the Common Law system would think that the Acts
are very abstract and the rules contained in those Acts are very general in nature.
• Facts of every case would be so peculiar that it would be very difficult to apply the general and
abstract form of rule which may need suitable additions and interpretations
Civil law systems
• The expression "civil law" is a translation of Latin jus civile, or "citizens' law", which was the late
imperial term for its legal system, as opposed to the laws governing conquered peoples (Jus
gentium).
• The origin of ‘Continental Legal System’ can be traced to the old age Roman Empire of the 5th
century A.D.
• Civil law is sometimes referred to as neo-Roman law, Romano-Germanic law or most commonly
referred to as Continental law.
• This legal system spread all over Europe. In the rest of the world, this legal system was imposed
during the era of colonialism during the seventeenth and eighteenth centuries.
• Now you may find this legal system present in many countries of Southern America and parts of
Africa
• Common features of a civil law system include:
- importance of Acts, Statutes passed by the Parliament or competent authorities;
- composition of judiciary;
- power of the judges to make law; and
- inquisitorial approach of the court proceedings

1. Importance of Acts, Statutes passed by Competent Legislature:

- The Acts passed by the Parliament or the competent authorities receive the highest
 importance in this legal system.
- Judges regard the rules framed by the Parliament as supreme and do not try to change it by
asserting their own authority as in the Common Law
- The judges may give their own interpretations of the vague language used in the Act, but they
would say that it would be not binding except upon the parties to the dispute.

2. Composition of Judiciary:
• Persons who have specialized knowledge of any particular field may be appointed as judges.
Thus, an engineer or a doctor or a scientist may become a judge. There is no requirement to
study law as a separate discipline for a requisite number of years and practice in the court of
law thereafter.
• Now, countries often require a law degree to become a judge, but legal practical experience is
not a compulsory requirement.
• Legal education: entering law school from high schools; academy for lawyers; judges
3. Power of the judges to make law:
• The judicial judgements are not binding, but they are given respect by the judges in other cases.
4. Inquisitorial approach of the court proceedings:
• the judges in the ‘Continental Legal System’ play active roles in finding the truth.
• The judges do not simply act as a referee between the prosecutor and the defense but they actively
investigate the matter themselves with the co- operation of all disputing parties and try to establish
the truth by collection of evidence.
• Collection of evidence is thus not the sole responsibility of the advocates but the judges too.
• Civil law v. Common law tradition

Civil law Common law

Main source of law legislation (codified law) case law (precedents)
Law-making bodies legislative bodies the judiciary
Creation of legal from general and abstract; deductive from specific and individual;
principles reasoning: applying a general inductive reasoning:
principle to a particular case legal principles derived from
individual cases
Role of the judiciary Interprets and applies the law Creates the law (precedents)
Type of legal procedure inquisitorial adversarial

New trends
• Each system has its advantages and disadvantages, therefore the trend is that every system
interact one to another; there is no pure common law nor pure civil law.
• The increasing contemporary influence of international agreements and legal sources.
• Therefore, the division of national legal systems into families or cultural groupings is weakened.
Some other law
1. Islamic law
• Islamic law is based largely on the teachings of the Koran (literally: 'the Reading').
• The totality of Islamic law is known as the Shari'a, which means 'the way or path to follow'.
• The unique ground for the validity of Islamic law is that it is the manifested will of the Almighty: it
does not depend on the authority of any earthly law-giver.
• One of the consequences is that Islamic law is immutable, for it is the law revealed by God.
• Thus, society must adapt itself to the law rather than generate laws of its own as a response to
changing circumstances.
• Since Islamic law reflects the will of Allah rather than the will of a human lawmaker, it covers all
areas of life and not simply those which are of interest to the state or society.
 2. Socialist law
a. Great influence of Civil law tradition
b. Legal concept: law as an instrument used by the wealthy class to dominate and exploit the
weaker and laboring class (Kark Max).
c. Law and society under the will of the communist party (rule by law vs rule of law).
d. Importance of public law (to protect order and security)

Vietnam’s legal system

e. History: Influence of Chinese Confucian law (1000 years); French law (civil law) in the
colonization period and the socialist law (since 1945, in particular from 1950s).
f. A socialist legal system based on the civil law, with some major modifications from Marxist-
Leninist ideology; and is in the transition with many legal adaptations to international legal
principles and standards (mixed system).
g. The main features:
• Legislation is the most important source of law;
• Courts must make decisions based on legislation;
• Policies are set out by the Communist Party, the only political party in Vietnam, which can
lead to changes in legislation in the future.
 Lecture 5: Major forms of government in the world
1.Definition
* Government
- A government is an institution or a system made of a group of people governing an organized
community, generally a state.
- Once appointed or formed, the government is responsible for the social welfare, law and order,
defence, and financial affairs of the state.
- Government normally consists of legislature, executive, and judiciary.
- The government’s powers are enforceable.

*Form of government
• Form of government (hình thức nhà nước) refers to the set of political institutions by which
a government of a state is organized (synonyms include system, type of government).
• We use two following interplaying elements to distinguish different forms of government:
+Power source refers to the question the power to whom or who rules?
+Power structure refers to question how the power is organized?
• We use these 2 criteria to distinguish different forms of government.

Power structure vertical decentralization: central and local

Forms of government (Các hình thức cấu trúc nhà nước):
- Federal government >< unitary government
- Federalism: federal government and state governments
- Local governments

Basic forms of government (các hình thức chính thể nhà nước)
• Democracy (Dân chủ)
• Republic (Cộng hòa)
• Monarchy (Quân chủ)
• Dictatorship (Độc tài)
• Transitional (Chuyển đổi)
• Theocracy (Thần quyền)
• Oligarchy (Đầu sỏ hay thiểu số)
Democracy
• Democracy – a form of government in which leaders are elected by the people, therefore
the power is with the people.
• Power is given to the people and exercised by them directly or indirectly through a system
of representation (a representative government or a republic)
• Democratic governments are based on free elections where all citizens have a vote.
• There are different forms of democracy (direct and indirect democracy; participatory
democracy; deliberative democracy).
• Most of contemporary governments are democratic to some extent.

Forms of republic
• Republic: a form of government in which “power is held by the people and their elected
 representatives”.
• In all republics, the head of government is an elected or chosen president for a specific
length of time (term of office).
• A republic is not identical to democracy (in some undemocratic republics, the leaders are
chosen by a small number of people and may stay in office for a long time, sometimes
without ever being elected, or re-elected. In some cases, there may be elections, but these
may be conducted in corrupt ways, or elections are not given a free choice of who vote for.
• Contemporary democratic republican forms of government: The presidential; parliamentary
and semi-presidential and socialist republics

The presidential republic

A form of government in which the head of State (president) leads an executive branch that is
separate from the legislative branch in the system that uses separation of power.
• First established in the United States (the Constitution of 1787) based on the separation
of powers (checks and balances).
• Most popular in Latin America; Eastern Europe; some Asian countries such as Indonesia,
South Korea; Philippines
The parliamentary republic
A form of government in which the executive (a prime minister and its government) derives their
power from the parliament, so they are elected by the parliament and accountable before the
parliament.
• Rooted in the parliamentary system in the UK (the accountability of the executive before
the legislature).
• Examples: Germany, Italy
Semi-presidential republic
• Semi-presidential or a mixed system; or dual executive system: a form of government in
which a president exists alongside a prime minister and a cabinet, with the latter two
responding to the legislature of the state.
• First established in France (the fifth Republic of 1958).
• Others: Belurus, Croatia, Poland, Romania, Russian and Ukraine. Russian is distinct
(super presidential system).
Socialist republic
• No separation of power, but democratic centralization.
• All power are vested in the people
• The national assembly is the highest organ of the state; others powers, including the
executive and judiciary powers derive their powers from the national assembly.
• The role of the sole leading party – the communist party.
Monarchy
• A form of government led by an individual who holds the position for life, having
inherited the position, and who passes it on to a relative, usually a son or daughter.
• Monarchy is the longest lasting form of government; popular in the states of pre-
capitalism.
• Forms of monarchy: Absolute monarchy v. constitutional monarchy
• Absolute monarchy: the monarch has absolute power (or great power) and make all
decisions and laws of the country.
Constitutional monarchy
 • The powers of the monarch are restricted to those granted in the constitution.
• Most constitutional monarchies uses a parliamentary system in which the king or queen
may have strictly ceremonial duties. They often have a elected prime minister who is the
head of government.
• Constitutional monarchies are democratic governments
• Constitutional monarchy is rooted in the UK (since the 13th century
• Constitutional monarchies are common today. E.g. the UK, Australia, Japan, Thailand,
Malaysia…
Dictatorship
• A government in which a single leader or party exercises absolute control over the
government and society.
• The leader or party is not elected and may use force to keep control. In most cases, its
absolute power is exercised in a cruel way
• Other names for a dictatorship include: autocracy, military junta, authoritarianism,
totalitarianism or fascism.
• Examples of dictatorship today: North Korea; Libya; Myanmar; Sudan; Afghanistan
Transitional
• A transitional government is one that is in the process of changing from on form to
another
• Countries with transitional governments are often unstable
• Examples: The communism – the capitalism (East Europe); or to the socialism (Vietnam,
China); Iraq, Afghanistan
Some other forms
• Theocracy – a government rules by a religious leader
• Oligarchy – a government in which a few people such as a clan or clique have power ><
Democracy; or Republic
Form of Vietnamese Government
• Form of a socialist government with modifications
• Traditional features:
• The role of the sole leading party – the communist party. High level of centralization
• All power are vested in the people; direct and indirect democracy; participatory and
deliberative democracy
• The national assembly is the highest organ of the state; others powers, including the
executive and judiciary powers derive their powers from the national assembly.
• Modifications:
• The rule of law state
• Distribution, co-ordination and control among state agencies in exercising legislative,
executive and judiciary powers
• Responsibility; openness and transparency.
 Lecture 6: Constitutional law
I)Overview of constitution
Every democratic state has a constitution.
*What is a constitution?
• The supreme law of the land
• “The fundamental and organic law of a nation or state, establishing the conception, character,
and organization of its government, as well as prescribing the extent of its sovereign power and
the manner of its exercise.”
— Black’s Law Dictionary
• A Constitution is a set of rules that:
- Seek to establish the duties, powers and functions of the various institutions of government
- Regulate the relationship between and among the institutions
- Define the relationship the state and the individual; i.e. define the extent of civil liberty (basic rights
and freedom)

Nature and purposes of a Constitution

1. It serves as a supreme or fundamental law
 It is the charter that created a government
 It is binding all individual citizens and parts of the government
 It is the ultimate law; the law other laws must abide by
 It is the test of legality by government official
2. Establishes the basic framework and underlying principles of the government
• Prescribes the permanent framework of the system of government, and assigns to the different
department or branches, their respective powers and duties
• To establish certain basic principles by which the government is founded
3. Designed to preserve and protect the rights of the citizens
• It declares and defines the rights and duties of citizens.
• Most constitutions include a declaration of fundamental rights applicable to citizens.
• At a minimum, these will include the basic civil rights and liberties that are necessary for an open
and democratic society (e.g. the freedoms of thought, speech, association and assembly; due process
of law and freedom from arbitrary arrest or unlawful punishment).

II.Constitutional supremacy and constitutional review

• Constitution is a supreme law to which all others law and public actions must conform and in
accordance with
• All constitutional violations shall be invalid
• Constitutional review is to assure the supremacy of a constitution
• The constitutional review power (i.e judicial review) is often exercised by ordinary courts, a
special constitutional court or a constitutional council

III. Separation of powers

• What is it?
- This is the idea that a government functions best when its powers do not rest in a single authority but
are instead divided among different branches of legislative, executive and judiciary powers.
- Separation of powers is a political doctrine originating from the writings of Montesquieu in The Spirit of
the Laws
- Montesquieu's approach was to present and defend a form of government which was not excessively
centralized in all its powers to a single monarch or similar ruler. According to him every man entrusted with
some power is bound to misuse it.
- In simple words Montesquieu's view is that concentration of legislative, executive and judicial functions
either in one single person or a body of persons results in abuse of authority and such an organization
becomes tyrannical.
• There are three branches of government:
- The legislative - which makes the laws or adopt new law or amend the law
- The executive - which enforces the laws or make sure the laws are carried out
- The judicial – which protects the laws or apply the law, and settle disputes and punish law-breakers
according to the law.
• Separation of power also means checks and control among the powers. E.g. In the parliamentary
system
- A Parliament may adopt a no-confidence vote in a government
- The government, or cabinet, in turn, ordinarily may ask the State president to dissolve the parliament
- The courts may review the constitutionality of the law and executive regulations.
IV. The American Constitution
• Adopted in 1787 (the first & the oldest constitution of the world)
• 3 Parts
- Preamble: Introduction, established the purpose of government
- Articles: 7 articles which provides guidelines for how the government will operate
- Amendments: 27 amendments to the original documents, i.e the first ten amendments on
fundamental rights and freedoms (Bill of Right)
6 principles of the US Constitution
1. Popular Sovereignty:
The people are the source of power.
Popular = People; Sovereignty = Power
2. Limited Government:
Government powers are limited to what is written in the constitution.
Example: The police cannot search or seize your property without demonstrating cause and
getting a warrant.
3. Separation of Powers:

4. Checks and Balances:

Definition: Each branch of government has some power over the other two branches.
Purpose: Preventing any one branch from having too much power.
Example: If Congress makes a law , what can the President do if the president does not agree with
it?
5. Judicial Review:
• Courts decide if government acts violate the constitution.
- Final authority on what the constitution says.
• Marbury v. Madison established judicial review (1803)
6. Federalism:
- Power is divided between national, state, and local governments.
- Each level has its own responsibilities.
The government follows these principles when making laws and decisions.
 v .The Vietnamese Constitution
• Constitutional history: the first Constitution of 1946; the Constitutions of 1959, 1980, 1992
and 2013.
• The current Constitution of Vietnam is the Constitution of 2013
Structure of the constitution
The Constitution contains a Preamble and 11 Chapters: I) The Political Regime; II) Human Rights,
Fundamental Rights and Obligations of Citizens; III) Economy, Social Affairs, Culture, Education, Science,
Technology and Environment; IV) Defense of the Fatherland; V) The National Assembly; VI) The President;
VII) The Government; VIII) The People's Courts and the People's Procuracies; IX) Local Authorities; X) The
National Election Council, the State Audit Office; XI) Effectiveness of the Constitution and the amendment
to the Constitution
Form of government and basic principles of the state
- The Constitution defines Vietnam as a socialist rule of law State of the people, by the people, and for the
people.
- Vietnam is a unitary state ruled by one party system with a co- ordination among State bodies in
exercising legislative, executive and judicial powers.

Basic institutions of the political system

• The Communist Party – the leading role
• The Government institutions – the central role
• The Vietnam fatherland front and its member social-political organization – basic foundation
The Communist Party of Vietnam
• The Communist Party of Vietnam is the founding and sole ruling party of the Socialist Republic of
Vietnam.
• The leading role over the state and society is guaranteed by Article 4 of the Constitution
The National Assembly
• The National Assembly is the highest representative body of the People and the highest body of
State power of the Socialist Republic of Vietnam.
• The National Assembly exercises constitutional and legislative powers, decides significant
national affairs and exercises supreme control over all activities of the State.
The State President
• The State President is the Head of State and represents the Socialist Republic of Vietnam both in
domestic and foreign affairs.
• The State President is the Head of State and represents the Socialist Republic of Vietnam both
in domestic and foreign affairs.
The Government
• The Government is the highest administrative body of the Socialist Republic of Vietnam, exercises
the executive power and is the executive body of the National Assembly.
• The Government is accountable to the National Assembly and shall report to the National
Assembly, its Standing Committee and the State President.
The People Courts and the People’s Procuracies
• The People’s Courts are the judicial bodies of the Socialist Republic of Vietnam, exercising the
judicial power.
• The Judges and Assessors are independent and shall only obey the law; interference with the trials
of the Judges and Assessors by bodies, organisations, and individuals is strictly prohibited.
• The People's Procuracies shall exercise the power to prosecution and control judicial activities.
The Vietnam Fatherland Front
- The Vietnam Fatherland Front is one of the basic state institutions.
- It is a political allied organization and voluntary union composed of various different political and social
organizations and representatives of different ethnic and religious groups and of Vietnamese people
residing abroad.
- Article 9 defines the aim of the Vietnam Fatherland Front and its member organizations as establishing
political base of the people's administration, fostering the tradition of national unity and strengthening
political and moral cohesion among people.
The social-political organizations
- The Vietnam Trade Union, the Vietnam Peasant Society, the Ho Chi Minh Communist Youth Union, the
Vietnam Women’s’ Society and the Vietnam Veteran Society are socio-political organisations established
on a voluntary basis that represent and protect the legal and legitimate rights and interests of their
members;
- They cooperate with others members of the Fatherland Front and unify the activities of the Fatherland
Front.