.Binding rules is customary law. So, the question is when?

When the custom can be transferred into binding rules?

The first answer is how and when.
Can you give me some keywords? In our class, I may ask the student to give me the full answer. But
in our class, I just require you to give me some keywords.
So, give me some keywords to show when a custom can be transferred or converted into a binding
rule. When?
Authoritarian? Condition?
What kinds of conditions? Retail? Condition? If a custom satisfies such conditions, it can be
transferred or converted into a binding rule.
When? For example, the habit that the woman, the wife, prepares the dinner for the family.
Do you agree? For example, if we are the council and we vote to convert or not to convert it into
customary law, will you vote? Will you vote for yes?
The habit that the wife, the woman, has to prepare dinner for the family. So, will you vote for yes?
No?
So, why yes and why no? That's in the answer. When a custom can be converted into a binding rule or
should be converted into a binding rule.
When a custom can be converted into a binding rule.
Should a member of the family practice the worship to the ancestor?
Should the younger member of the family respect the elder member of the family? One by one, yeah?
So, should the younger member, the member of the family respect the elderly? In the family? This is a
habit. This is a practice. This is a custom. You respect your parents?
Yes, you respect your grandparents. You respect your aunt, your uncle. So, should a member of the
family respect the elderly in the family?
Yes or no? Yes or no? Yes. Yes? Right? Anyone? Go for no? Yes. You go for no? No. Equality.
That means the elderly should respect us too. No. We just solve the habit. Of course, your parents
have to respect you as well, right?
But it's different questions. So, I just ask whether the member of the family respect the elderly in the
family? Yes. Yes. Right?
And actually, the law on the family ấnd marriage, , already passed. The government has to convert
that habit into a legal regulation.
Do you remember that you studied such kind of subject? Yes. Cha mẹ, con cái có bổn phận. Respect
elderly blah blah blah. Remember?
So, that's the way that the government, you know, make a judgment of such habit and convert it
into the violent rules.
And everyone in Vietnam had to obey such kind of practice that the member of the family has to
respect the elderly, right?
If you look up in the law on marriage or law on family, in some countries, they know such kinds of
regulation, right?
So, this is a habit of Vietnam and already converted into the law, right?
How about the habit that the wives prepare the dinner for the family? This is the habit.
Yes, you can see your family as well, every time, every day. So should the government recognize this
and convert it to the legal requirements?
That all women, all wives have to or must prepare the food or dinner for the family?
Should we? No. So when you say no and when you say yes, that is when you make a judgment in
your mind. Does it satisfy some condition or not?
If you tick yes and you go for, if you tick and you go for yes, if you cross and you go for, for no.
And so may I have your idea that which is the condition that a custom should satisfy? No.
So that it can be converted into customary law. And what is the keyword? Can you give me some
keywords?
Keyword first is reasonable. Suitable. Legitimate.
And consistent with public. Consistent, reasonable. Can you hear the answer? Alright.
And it seems that it's not your thinking, right? You read it in the textbook or something? Yes.
So I just want you to, you know, get rid of the textbook for a moment. Not get rid of all the time, just
for a moment.
And we just use common sense because we're talking about custom, right? We're talking about habit,
we're talking about community. So let's think about...
Of course, you gave me the right answer because it's already written in the textbook. Right? And for
other students, do you think we still have other keywords?
First, is it reasonable? Then, it has been practiced consistently over a significant period of time, right?
And is it regarded as obligatory to the community or society? And this is in the textbook.
Now, my question is, how can we define the reasonableness? Is it only reasonable? Is it
unreasonable?
And what is the criteria to judge a factor is reasonable or not? A custom is reasonable or not?
For example, I ask whether we convert the habit that member family respect the elderly. You say yes.
It's reasonable.
So may I ask you, why is it reasonable? On the second situation, you say no.
We should not convert the habit that the woman, the wife, prepare dinner for the family into the
customary law. You should not.
So may I ask you, why you say it's not reasonable? How can we define the reasonableness of a
custom? Yeah, please, go ahead.
I think the reasonableness, we can evaluate and choose together.
The first is that it's an improvement idea if we come and recognize it in our community. For example,
in respect to the elder,
if it's a good tradition in our nation, and the second is that it must consist of the,
for example, the woman do not have obligation to prepare the dinner.
This is followed with the product of obligations in the manner of marriage.
So, how about, honestly, how about the, female student,
related to your, you know, your future? If we convert the habit that the woman have prepared the
dinner for the family into customary law, it will be your belief.
And you say, it's unreasonable. So why?
And the female student can immediately question your defense or your arguments. Otherwise, it will
be, the law. And it will be your duty.
All right. So, it's reasonable, it's against. Actually, in the law,
do you remember the lesson about the theory of law?
When talking about the law, to evaluate a law, we have two criteria. First is the legality.
Do you remember? And, second, the reasonableness. Is it reasonable or not?
So, the legality of a customary law
will be guaranteed by the process that the government converts it into a binding rule. And the
reasonableness will be the second criteria of the law.
Because it is customary law. And the reasonableness can be, you know,
understood as, do you remember the theorem of the law? When it,
when it complies with, or suitable or complies with, the moral relation, right?
The moral, the relation, the social economic condition, right?
It's suitable, it complies with, the living standard,
and the moral standard of the people in the community in a certain area. Because the reasonableness
related to a specific area
is small group, like a pre-province. In larger group, it can be a country, right? And we cannot have the
reasonableness
for every country in the world itself, right? Because each person or each community will have the
standard or the background to judge
a problem is easily reasonable or not. So it depends on the living habit, it depends on the moral
standard, it depends on the social economic condition, right? It depends on the education standard, it
can depends on the clarity, right?
It can depends on, the easy to understand in something, right?
So in the theory of state of law, you can look up in the lesson. So normally it's considered reasonable
when it complies with the condition,
the moral, the living standard, the social economic condition of a specific community or a country. So
first, it must be considered reasonable.
Next, it has to be practiced consistently over a significant period of time. What does it mean? It
means it is accepted, right?
It is accepted by the community because they accept it. So they practice it consistently over a
significant period of time.
And it is not an obligation of the community or the society, you know. So the state, when they say,
oh, it's satisfied, tick, tick, tick, right?
They can convert it into a binding rule.
And the expression box can be in the legal documents
or in the right adjustment on decision of the court, right?
So may I, as the lecturer of the universal law, can make a decision and announce a habit
now can be a customary law? No, right? Because my own decision or even in the writing forms, like I
make a decision in writing, right?
It is not a legal document, right? And I'm also not eligible to make the judgment, right?

As the judge of the court, judges of the court, right? So it depends. It must be in the legal
documents by authority, convenient authority.
Can national assembly? Yes. Can the prime minister? No. The prime minister? Yes. Yes. Universal to
the...
No, no. International law, let me do. Legal documents? No. It may be. Yes. Why not? Why not?
Because the law is not in the constitution.
According to Article 4 of the Propagation of Legal Documents Law Number 18, right?
Of the National Assembly, Turn 13, the prime minister is one of the competing subjects to issue a
legal document, the normative legal documents.
And it depends. So he can, you know, directly or indirectly, directly approve or support a practice,
a habit of a community by a decision. And it can be a legal binding for the custom. So you should
base on Article 4
of the Law of Propagation of Legal Documents to find whether a subject is a completed subject to
issue a legal documents, right? Article 4.
And the prime minister is a subject according to Article 4. And the legal documents normally, in your
mind, this may be about the law, right?
The law itself, not the order.

Remember the resolution of the National Assembly, the resolution of the Standing Committee of
the National Assembly, it can be the decree of the government, it can be the circular of a minister of
the ministry, it can be a decision of the Prime Minister, it can be
the decision of the People's Committee, it can be the resolution of the People's Council
at the local level. So if diversity forms, it will be a diversity.
So the legal documents here means văn bản pháp luật is not only luật or code, đạo luật.
But normally if a custom wants to be a customary law,
it's better to be in a law, right? And we have an example.
According to the civil code, determining the surname of a child, if there is no agreement
between the parents to determine the child's surname, it will be determined according to
custom. So this is the way that the government
is to think about giving the surname to a child by the mutual agreement between the parents
and the good habit, right, and respect it. And how about the custom to give the surname
to a child in Vietnam? Follow the foreign surname, right?
This is a custom. This is not an obligation, like the strict obligation that a child is
must be named by the surname of the father because the parents can discuss
and make their own agreement to give the surname of the child and in some family now they have two
children and one children got the name of the father the
surname father and one the name of the mother that's fine right so this is the
agreement and in case there is no agreement and then it will be determined by the
custom that means follow the surname of the father right and in the city also the civil law
recognize that if parents do not have an agreement to determine the child accordingly according to the
law
follow the custom
first according to custom and in case the parents the mother and father in different groups of
administration one is mom, the other one is so is something right in case the parent is the same as the
kid is ok is easy but in case the parents have a burden isnt easy but the parents kinda pick up but not
all
difference right and this city identity so they apply the custom of the smaller
and improves if the father or the other
so why this is a custom to define the entity first the government you know respect the agreements of
carrots is
that is their business right and in case they come no come to the agreements so
according to the custom and prefer all we have to give you know do favor to the
small and expensive rooms so why so this is the signal this is the reasonableness
the reasonableness is when a business is in good condition because bigger group of ethnicity and the
smaller group so the country will protect the smaller group
so that they can maintain the number of population right the number of the
people the population so this is the way that the government convert the
custom into a legal documents and it consider as reasonableness
right reasonable apply consistently over a period of time right and guaranteed by
the government how about the judge you have a minute to read over the case first
so first this is the civil issue right put the answer the civil issue not the criminal or something
so at the core principle of the civil law it based on the agreements right the civil law based on the
agreements of two parties or the parties right so first
is they are the agreement right but the civil the civil in the party do not agree and then they have to
make the decision and in this
problem the decision will be very hard to make to the judge and then the judge
decide to apply the custom and tradition right to favor Mr.T
because Mr. T proposed to receive the land to serve as the place to worship his parents and
grandparents
so if Mr. T proposed to receive the land for himself or to sell it to take money to go somewhere
maybe the court will make another judgment, a different judgment
but because in this situation, Mr. T proposed to receive the land for the purpose of serving and the
place to worship his parents and grandparents
so the court do favor to him based on the custom and tradition of Vietnamese people
so in this situation, Mr. T proposed to receive the land for himself or to sell it to take money to go
somewhere but because in this situation, Mr. T proposed to receive the land for himself or to serve as
the place to worship his parents and grandparents the court make a decision or a judgment that the
custom is positive
it is defined custom and convert it into a legal body we do not convert it into law you remember the
previous slide
we do not say it as law we say convert it into a legal binding
In that situation, this is a custom converted into legal binding by a decision on the judgment of the
judge of the court and protected or guaranteed or implemented by the trial process of the court.
I can show you another example.
Actually, this case I show you just for information. We have nothing to discuss about the case because
it's very clear.
But the case of Kê Trà 19 thí is very popular in Vietnam when we talk about customary law. So I just
show it to you and you take time to read it.
Because if anyone asks you whether you study customary law in Vietnam, you say yes. And 90% say
yes.
Of those people who ask you the next question is, have you ever read the case Kê Trà 19 thí? So it's
better if you know what it is.
We have nothing to discuss. Just for your information.
Do you understand the case? It's easy, right? According to the law student. And it's written in
Vietnamese.
So it's very easy to understand.
I just want to give you more example to say that during the application, during the process of
application, the law or the legal documents into practice,
the court always think about, you know, adopting a custom or habit to be an evidence to make the
final judgment.
In case there is the situation of lacking of law, we do not have law. So in this situation, the court can
consider the habit.
And the habit of the person have to satisfy the condition is the reasonable and has been practiced
repeatedly for a significant period of time.
It can be a tradition. It can be a habit of a community for a long time. Right. And it can be a factor to
make the final judgment.
And the government respected, allowed it. Everyone respected.
And in that situation, a custom is converted into a legal binding. And we call it custom, kind of
customary law. Right.
A custom is different customary law. A custom can only be a customary law when it is recognized
and converted into a legal binding by a competing authority in Vietnam.
Right. It can be either the legislature or the judge of the court. Right.
And some questions to close the customary law part.
For you to think about first. In customary law, the indigenous source or the law in Vietnam, we
already answered the question in the previous class. Right.
Since it is the law in Vietnam or the indigenous source law, we answered this question in the class
yesterday already.
So we focus on two more questions. I think it's very important because if you do not study the
customary law in Vietnam in the class and have time to do your own research,
you also may be confused about Hương Ước and customary law as many people are aware. So think
about the pros and cons of applying customary law in Vietnam.
And is Hương Ước Community Agreement a strong customary law in Vietnam? And we will go one
by one. So focus on this question first.
Can you give me the pros and cons of applying customary law in Vietnam? You may have maybe
3-4 minutes to have a group discussion.
And could you please have a paper to write down the results of your group discussion? The pros and
cons.
Oh, I think I have this easier for you. One side is pros and one side is cons. One side is advantages and
one side is disadvantages.
After you give your judgement about the pros and cons, the advantages and disadvantages of applying
customary law in Vietnam,
you may come to the final answer. That is, why in Vietnam, at the moment, the customary law is still
the ethnic and digital source of law.
It's still not the source of law. Right? So let's think about that.
Public education and equipment. Public education and equipment. Digital. Digital. No digital. No
digital. No digital. No digital.
No digital.
Awareness. Awareness.
Access.
Awareness. Light.
Look at that! pasta hair. I just buy this. The
It's just a standard feature, it's better than the others.
Alright, may I have your answer? Thank you.
So, let's talk about the advantages first.
It seems you did a very good work.
For the approach that I just did, your answer is to fill the gap of law,
to increase the consent of the community in following law, like applying law.
So, the first keyword is the gap of law. The second keyword is consent, the agreement.
It enhances the consent of the community.
It preserves the cultural tradition, right?
It keeps the cultural tradition. It creates the harmonious atmosphere is different at home.
It's about human rights, attending human rights.
So, the legal documents and the precedent do not attend the human rights. It's also maintaining human
rights in overall sense.
Do you think the customary law can protect the human rights better than the legal documents?
No. But it's just like a source of...
Also supporting the legal documents in protecting human rights. It's based on cultural, cultural
religions and also economic sense.
I mean, they're protecting the... Maintaining the unique of that culture and religion, traditions. Oh. So,
it seems like the same answer, the...
The earlier class, it protects the... It protects the cultures or something rather than the human rights,
right? Because the customary law...
The custom, we have the negative and positive customs. For example, the custom of giving a child to
follow her mom or his mom
when the mother pass away, right? And give birth. And give birth to the child. It's not the... It's not in
order to protect the human rights.
Through the gaps of the legal system, the public education and awareness
creating the secure money for researcher... What's it mean?
Creating the... The... The money? Secure... Secure... So, can you read it? Of money for the
researchers, what's it mean?
Yeah. What's your, you know, concrete idea about this? It's... It's to save money for the researchers.
To save money for the researchers. Isn't that the proposal of applying customary law? Yeah.
Because when you use legal documents, you also, you know, give money. And... For the legislature,
right?
A vision and inspiration for the legal system. Yeah.
As you said, for example, we bring the respect of the elderly... I mean, respect of the elderly in the
system.
They're going to try to legislate it for them to legislate it for them to legislate it.
Alright, that's clear. It should correct the rules, right? According to the prior resolution, it should be
good.
So it's good. That's good. For some circumstances, we don't have suitable rules to solve, so
custom law can be solved.
Custom law is flexible, protects the interests of the minor community, reflects the values and
norms of the community and has been developed over centuries,
recognizing customers can help to preserve and promote the culture and entity of ethnic
community.
Many customs are deeply ingrained in our thinking and difficulties chains, they will be often confused
between law and custom.
Confused between law and custom, I think that is a good idea. Thank you. The form of trial is
unreasonable. What does it mean?
The form of trial. I understand, but why?
When you say it is unreasonable, it follows a procedure which is provided in the procedure law, right?
Like the criminal procedure. The civil procedure law. We have a code without a law. So why do you
say it is unreasonable?
Potential of discrimination. What is the idea? What do you think is the potential of discrimination?
Why?
Oops. What is the idea? No idea. No idea. My hood peed out.
What do you think is the potential of discrimination? I think that is a illustrating idea, but can you tell
me more about it? What do you think is the potential of discrimination?
Because the customary law is to, in order to respect the fine customs, right?
And when we speak of five customs, I do think of the kinds of discrimination.
Sometimes discriminatory, oh, maybe two groups you search somewhere in the internet with the same
idea.
This group also gives me the idea that the customary law is sometimes discriminatory against women.
Customary law can be complex, yeah, it's complex and very difficult to apply consistently. It can be
different to prove the system of law.
The system of customary law is a court of law. That's what I think it's hard to prove, the system of the
customary law is a court of law.
No unity in the legal system. No permanent solution to this.
I think we should not... Make use of it. Make use of it. Oh. Customary law.
In it, we need to minimize, reciting the certain customs. Oh, come on, you're writing.
Your handwriting is really hard to read, Stephen. Yeah, the problem is that we don't have... If we have
the rules, we have to...
We don't have the ability and capability of determining the precise criteria for that custom to be
applied in customary law.
So it depends on the court or it depends on the legislature inside by themselves? It depends on the
court and also the legislature too.
And the fifth criteria is that... It depends on the court. It depends on the legislature. All right. I have
some suggestions.
This is not, you know, everything about the rules is called some apply the customary law. It's just like
a conclusion of some researchers.
After doing research about customary law, they say about the rules, the advantage. First, it is
the stability, long-term application. So why?
What is the advantage? Of the customary law, the stability, the open and long-term application. I'm
your lawyer. Why? Do you agree or disagree?
Stability and long-term application. Agree or disagree? Why stability and long-term application?
Because it's established by the community, right? And before it became the customary law, it's in this
world already.
So the community apply repeatedly, right? For a significant period of time. So the stability and long-
term application can be proved, right?
Because even the custom is not converted into the binding rule. It still exists and applied in the
community.
So when it converted, it is converted into the binary rules. It continues their life and continue to be
applied in the social life.
So it's the long-term application and stability.
The next advantage that Vietnam should recognize and use it, that is the voluntarily apply.
Agree? Right? Because it's established by the community, right? So it will be applied voluntarily.
Right?
And it maintain the identity and the order of community. It also work. Read in the paper, it maintain
the identity and order of community. Maintain identity.
But the problem is that it can be applied inconsistently. Right? Why?
Inconsistently because it depends on the community.
The perspective of the authority when using or applying the customary law.
And sometimes the factors, the flexibility factor also reflect in the law.
For example, in the single code, we already saw, seen in the previous slides. The way to design. The
surname of the child.
It depends. It depends on the agreement. It depends on the custom.
So the custom means in each community they may have their own decision.
And for example, the government want to make a plan for developing an area. It really challenge.
It really challenge the government to clarify or to make a plan to develop an area of the minor
ethnicity. Right?
Because the government cannot know in 10 years later, in 20 years later, how many people of a minor
ethnicity will be born.
This means the population, how it increase. Right? Increase or decrease something. It depends.
Because in 10 years, if the parents make agreement that the surname of the child, right, will follow the
surname of the father.
So the population of that group will be increased. And if the parents, the custom, say the surname of
the child should follow the surname of the mom. Right?
So the population of that group will be increased. And the other group decrease. And other group
increase.
This why in the areas of, you know, the Kinh ethnic, we just follow the surname of the father.
So the population of king people is very easy to be predicted.

So I'm like sometimes in the city, it depends on the way that the court, the way of the legislature
recognizes. And decide whether to use it.
It challenges the systematicity of the legal system. And it raises the question that were written in your
paper.
If customary law has the regulation and conflict with the current law. So what will happen? Right?
And the problem of the sanction forms.
Because the sanction form of the customary law is diverse. Diverse. It's different from, you know, the
law, in the legal documents.
For example, in the legal documents, we just have like wording. We have fine. Right? We have the
sentence, imprisonment sentence. Right?
We have such like this. The wording. Fine. Prison imprisonment. But for the customary law, they
have the sanction.
The sanction of customary law is diverse. For example, apology to God. Apologize to the village.
Right? And other kinds of sanctioning.

So the sanction form is also the problem when we apply the customary law. Because when we
transfer or convert a custom to be customary law, it's better.
We convert the sanction form of such kind of regulation together. Right? It fits. Right?
So if we just convert the regulation of the custom to the legal forms, and we make the different
sanction form for such kinds of action.
So it sometimes it not, you know, reflect the spirit of the community. Because the spirit of community
is what to drive an action to a certain direction and follow with the sanction form. Right?
For example, they think if a woman give birth to a child and pass away when giving birth,
the child must follow his father. That is the sanction form.
So if we, for example, if we accept such kinds of custom, and we say, we just word the child. It
doesn't make sense.
Right? Because in the idea of the custom is, that is the signal of the appearance of a devil.
So they have to, you know... You know... You know... You know... You know... You know... You
know...
You know... You know... You know... You know... You know...
What does that mean? Actually, that means that there are 5 types of descriptive part. Number 1. So...
In the first, two points. First is the word more. Then is the word...
What are the criteria, conditions, factors, elements based on what we determined a custom is?
Find custom, positive or negative.
It depends only on the subjective decision of the person who is computer authority.
In case we want to convert a custom into a customary law, it's better we have a council.
We have the council including the people of the community.
We need to make a decision together, whether it's a fine custom or a negative custom. But now we
still don't got it.
It's made by the subjective decision of the judge in the court during the trial times.
Or it's the subjective decision of the legislature, the lawmaker.
So it's also a challenge to apply. Because we say, oh, it's fine custom, we convert.
And this one, we say, oh, it's negative. For example, that pair or situation, we say, oh, negative, we do
not convert.
But the community say, it's positive, you must convert it, you should convert it. And it's like a conflict
when determining the fine custom to convert.
So that's why in Vietnam, the customary law is just an additional source of law. It's not the law in
Vietnam.
It's just an additional source of thinking. An additional source of... to make a decision of the court and
the lawmaker.
It's not the law itself. And for the next class, I think it's better for you to give it as a homework.
Because you have to read the article number 61. For the next class, I will not give you a time for
thinking.
When we start the class, you have to answer my question. Where who is a source of customary law in
Vietnam?