LESSON 2

The Origin of State and Law

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 I. Origin of State
• These are the theories on the origin of the state as having 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 into a state.
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• I.2. Patriarchal
Theory. The
origin of the state evolves
from the enlargement of
the family under the
authority of the parents or
the elders. Later on, it will
develop into a tribe,
kingdom then states.
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•I.3. Force Theory. The
creation of the state
through the constant
war and invasion of the
great warriors in an
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
ordained mandate that they
represented the state based on
the divine right ( as God created
the state). It was in this nature
that the divine rights of kings has
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, and 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 the state.
• The owners of private property
felt insecurity as to its
protection and they felt the
necessity of a superpower that
could provide protection
ultimately.

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• How does the system of private property
help the creation of a state?
(1) As soon as there was private property,
two classes of men there appeared—one
was the owner of the 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 organization
to control and dominate slaves.
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• The Marxist theory
contends that the
economic crisis of
feudalism forced the
aristocracy to adapt
various centralized forms
of the 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 the state. The state is
not something coming
out of society. It is rather
the product of society.

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• People inhabiting society laid the
foundation of the state for the
realization 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 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 that
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 the 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 17
• 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
society it was always friendly with
the owners of the 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 to 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 a materialistic point of
view. 19
 II. Models of the Marxist Theory of State
• The Marxists have
discovered two models
of the Marxist theory of
the state. One is the
instrumentalist model
and the other model is
the 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 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 the property.
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• From this special role of the state,
the Marxists have deduced a
particular model of the Marxist
theory of the 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 the state.
• Hence the words relative
autonomy do not mean that the
state always acts independently of
dominating class.
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III. Sources of Law
There are numerous sources of law, including
• Vietnamese Communist Party’s policy đường lối chính sách của đảng
1. Legal Normative Documents
2. International Treaties
3. Customs
4. Precedents

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 SOURCES of LAW

US Model

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SOURCES of LAW. Legal Normative Documents
quốc hội

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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.
-Vietnam has applied written law
- Ensure the supremacy of legislation and its
unity, and unanimity of its application.

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 SOURCES of LAW
- Recognizing customary law
is particularly significant. –

- Vietnam would solve a

number of the shortcoming
of its current legal system.

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- In 1986, Vietnam
decided to reform the
economy under a new
policy: The Doi moi
(Renovation) policy.

- Vietnam would need to

build a new legal system

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• Since the 1990s, customary
law has attracted more
attention from the
Vietnamese government.

• The reasons for this are

related to changes in
economic and social
conditions in Vietnam.

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- 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.

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- social relations ( such as inheritance,
marriage and family, civil transactions,
and land use) have also changed.

• The state law could not cover all the

new social relations that are occurring.

• To some extent, in social relations

where the state law does not reach,
customary law may dominate.

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• 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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• In practical terms,
customary law is the
first choice for dispute
settlements in
minority ethnic
communities.

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• Customary law also
involves a social
agreement to preserve
and protect the
community’s society and
culture.

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• However, customary law
remains a controversial issue.
.

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• Customary law has
shortcomings because it
is local and unwritten.

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• 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.

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• With customary law,
individual rights are not
given sufficient
consideration in
communities.

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• The state tends to harmonize
customary law with state law.
luật chính quyền
Bộ luật theo tục lệ
• The approach is to align
customary law with state law
while preserving and
upholding
giữ gìn
traditional values
and abolishing
bỏ
unsound
ko lành mạnh
customs
tục
(such as polygamy, chế độ đa thê

marriage between related

persons)

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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
toward recognizing customary law,
starting with further amendments
sửa đổi bổ sung
to the constitution.
Hiến pháp

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• With this basic
regulation, essentially an
itinerary
hành trình
for the
recognition of customary
law, a new chapter in
Vietnamese legal history
has opened. This issue is
also provided in Article 5
of the 2013
Constitution.
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• The law on Marriage and Family
2000 is considered 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 nổi bật
evidence for the recognition
of customary law can be
seen in the Civil Code 2015
luật dân sự
and Commercial Law 2005,
customary law and
practices shall be applied in
commercial activities pre-
established between parties
and commercial activities.

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• The Civil Code also contains several
regulations
quy định
relating to customary
law recognition. Regarding civil
transactions,
giao dịch
Civil Code 2015
provides:
• 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
tư cách pháp lý và/hoặc năng lực pháp lý
conformity with such transaction;
sự phù hợp
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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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IV. Precedents
The recognition of the customary
law is important for improving
the nation’s legal system.
- Vietnam will meet the
requirements for addressing new
social relations.

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- The potential application of
precedents would be
remarkable
- 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: the 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.
• 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 follows 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 leadership
of the 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
can 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 behaviors that it considers
the most logical and through the law,
make them mandatory for every
subject in the nation.
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 Properties of Law
• It is not the only law that
possesses normative character.
Other norms are also
normative.
• However, the regulatory scope
of the law 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, 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 they can be
understood and applied without delay.
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 Properties of Law

- The final characteristic of

state law is state coercion.
- 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 exerts an
important influence on the Vietnamese
legal system. Law is the means to
institutionalize the policies of the
Communist Party of Vietnam. Hence Law
originates from its policies.
• The mission of the 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. 64
 Properties of Law

• The state, with its role

of social management,
uses the law as an
essential means to
regulate social
relations by the will of
the ruling class.

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• Conclusion:
The modernization of the state
and law is a major concern of
the Vietnamese government.
The state and legal system of
the 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 the state.
2. What are the main differences
between Marxist theory and others
about the origin of the state?
3. What are the sources of law?
4. Are customs considered as a source
of law in Vietnam? Why?
for many reasons
important source of law, luật nhà nc còn thiếu sót,
nhất là khi có thay đổi về mặt nhà nc, trong khi
đó, customs law có thể... in vietnam - state law,
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cannot cover all, need
1. According to the Patriarchal Theory the origin of
the 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 a 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
characters
• 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 the
country
3. Is an unstable and diversified system
4. Is a system of relations

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In Vietnam, Customary rules
1. Are applied in the 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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