CHAPTER 2: THE LAW

CONTENTS

2.1 General issues of the law

2.2 Regulative mechanism of the law
2.3 Sources of the law
2.4 Legal system
 GENERAL ISSUES OF THE LAW

 2.1.1 The origin of the law

 2.1.2. The concept and basic characteristics of the law
 2.1.3. The proposes of the law
The origin of the law

WHAT IS THE ORIGIN

OF THE LAW???
 The origin of the law

 Under the Marxist – Leninist theory, the law has the same
origin as the state
The class –
Primitive divided
Communism societies

Clan – race -
tribe The state

Moral rules
The law
Religious rules
Others rules
Others
 The nature of the law

 Class nature: To exercise the will of the ruling

class
 Social nature: To create, maintain public order,
and protect common benefits…
 The concept of Law
“The law is an order of human behavior. An “order” is a
system of rules”
Page no.1-2, Hans Kelsen (2007),General theory of law and
state.

“ However, besides law there are other orders of human behavior, such
as morals and religion. A definition of law must specify in what
respects law differs from these other orders of human behavior”
Page no.1-2, Hans Kelsen (2007), General theory of law and state,

HOW SHOULD YOU BUILD THE DEFINITION

OF THE LAW ???
 Basic characteristics
of the law

Religion The Morality

Law

other rules
 Basic characteristics
of the law
 Class characteristic
 Social characteristic
 The law as coercive orders
 The law is enacted by the state
Page no. 88, Nguyen Thi Hue (2017), Fundamental State and Law Textoook,
National Economics University.
 Basic characteristics
of the law

COERCIVE ORDER

Sanction State organs

Coercive State power Everybody in
measure The ruling class society
The concept of Law

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 The concept of Law

 The law is a set of compulsory rules which is enacted

and ensured by the state. The law exercises the will of
the ruling class and adjusts social relationships for the
ruling class’s benefits.
 The proposes of the law

Preserve individual rights

Maintain the status quo

Keep the peace

Provide orderly social change

 Regulative mechanism of the law

 2.2.1. Legal norm

 2.2.2. Legal relationship
 2.2.3.The delict
 Regulative mechanism of the law

 The central concepts of jurisprudence:

- Legal norm
- the Sanction
- The delict
- The legal duty
- The legal right
- and so on
 LEGAL NORM

According to Hans Kelsen’s Textbook

“Law is made up of legal norms and legal acts determined by these norms”
Vietnamese textbooks
“Law includes a set of norms”. Each norm is considered as the smallest unit of
the law.

• Too general
Legal rule • Ought to behave

• Express the actual behavior

Legal norm • The cause of
 LEGAL NORM
 Elements of a legal norm
- Conditions, facts
- Acts (have the rights to do somethings; not allow to do somethings, force to
do somethings)
- Sanction (bad results if someone did not comply with the acts under the norm
as provided
 Expression
“ The different elements of a norm may be contained in very different products
of the law- marking procedure and they may be linguistically expressed in very
different ways” Hans Kelsen on page no. 45
 THE SANCTION

 The sanction are provided by the legal order to bring about certain human
behavior which the legislator considers to be desirable.
 The sanction of law have character of coercive acts in the sense developed
above.
 Classification:
+ Criminal sanction: punishment involving life, health, freedom, property
+ Civil sanction: deprivation of property with the purpose of providing
reparation: compensation for illegally caused damage
+ Administrative sanction: in terms of money, license, certification
…..
 LEGAL NORM

A legal
norm An article
of a statute
 LEGAL NORM

THE PENAL CODE 2015 OF VIETNAM

“Article 173. Theft 1. A person who steals another person's property which is assessed
at from VND 2,000,000 to under VND 50,000,000 or property assessed at under VND
2,000,000 in any of the following cases shall face a penalty of up to 03 years'
community sentence or 06 - 36 months' imprisonment:
 a) The offender previously incurred a civil penalty for appropriation of property;
 b) The offender has a previous conviction for theft or any of the criminal offences
specified in Article 168, 169, 170, 171, 172, 174, 175 and 290 hereof which has not
been expunged;
 c) The offence has a negative impact on social safety, order, and security;
 d) The property stolen is the primary means of livelihood of the victim and the
victim's family; the property taken is a souvenir, memento, or religious item that
has a spiritual value to the victim.”
 LEGAL NORM

 Classification

Legal
resources

General
norms

Individual
norms
 LEGAL RELATIONSHIP

A Social A legal A legal

relationship norm relationship
 LEGAL RELATIONSHIP

Elements

Subjects Objects Content

(legal person)
• Physical • Material • Rights
(natural) value • Duties
persons • Mental value
• Juristic
persons
 Legal subjects

 Competence (legal capacity)

It means the abilities of an individual to perform or omit the act qualified by
legal conditions and legal consequences under a norm. (to enter into a legal
relationship)
 Legal conditions and legal consequences:
- A certain minimum age
- A certain mental capacity
- Certain qualities
 The delict

 What is the delict?

 Does the delict relate to the sanction?
 What are criteria of a delict?
 The delict

 Illegal, unlawful act, wrongdoing and violation of law

 Criteria:
- Act, behavior (actions or non- performance of actions)
- Contrary to law (desire of legislator) “No sanction without a legal norm
providing this sanction, no delict without a legal norm determining that
delict” Hans Kelsen)
- Intention (excepting some special cases such as in terms of the environmental
compensate)
- Legal capacity
 2.3 SOURCES OF THE LAW
 2.3.1. The concept of the legal sources
 2.3.2. Kinds of the legal sources
 2.3.3. Legal normative documents
 The concept of the legal sources

 Hans Kelsen’s Textbook, on page no. 131

Source of law is a figurative and highly ambiguous expression.
1) Narrow sense: Designate methods of creating law. The source of law is always
itself law: a superior legal norm in relation to an inferior legal norm, or the
method of creating an (inferior) norm determined by a (superior) norm, and
that means a specific content of law.
2) Wider sense: narrow sense and also include non juristic sense: all ideas which
actually influence the law –creating organs: moral norms, political principles,
legal doctrines, the opinions of juristic experts and so on.
 Kinds of the legal sources

• Legislative acts
Statutory • Judicial acts

law • Administrative acts

• Legal transactions

• Custom
Customary
law
 Kinds of the legal sources

Legal normative documents

Precedents

Customary law
Legal normative documents of Vietnam

 Under Law on promulgation of legal normative

documents No.80/2015/QH13
- The definition of legal normative documents
- The system of legal normative documents
- The number and symbols of legal normative
documents
- The validity of a legal normative document
- The application principles
 2.4 Legal system

 2.4.1 Definition of the legal system

 2.4.2 Classification of the legal system
 Definition of the legal system

 No definition of the legal system

 Depends on culture, politic and so on
 Classification of the legal system

 Civil law
 Common law
And so on

WHAT IS THE DIFFERENCE?

Classification of the legal system

Law –
making
 Types of law

 Public law: Administrative Law, Criminal Law, Tax

Law…
 Private law: Civil law, Family law, Business Law…
 International law: International Public Law and
International Private law
 Public law and Private law

Public law
• The relationship between the state and
individuals
Private law
• The relationship between individuals
 Types of law

 Criteria to classify components of each type of law

- Adjusting objects: Social relationships
- Adjusting methodologies: Equality, authority