Transplanting commercial law reform : developing a 'rule of law' in Vietnam
Abstract
Against a backdrop of legal globalisation, socialist transforming states such as Vietnam are
reconfiguring their legal systems to engineer rapid economic development. Like Japan
during the nineteenth century, Vietnam is trying to open up, industrialise and become a
world force-in short to catch up with its regional neighbours and the West. Rather than
waiting decades to distil commercial law from internal practices, it has decided to develop a
legal framework from imported Western commercial laws.
Most theoretical discussions about the transfer of laws among countries concern North
American and European experiences with harmonising common and civil law systems~
These debates focus on problems arising from political economies and jurisprudence that
seem far removed from the issues facing law reformers in Vietnam. This study argues that
conventional explanations for the viability of some legal transfers provide misleading
criteria for understanding legal transfers in Vietnam. What is needed is a theoretical
framework in which to place and analyse how legal transfers interact with legal and social
systems in Vietnam.
This study attempts to make sense of Vietnam's extraordinary history of commercial legal
development by devising a set of working postulates that bring the analysis closer to the
processes shaping imported laws. It then applies these postulates to a series of case studies
to develop a model that explains how legal transplants are adapted and implemented in
Vietnam (and other socialist transforming East Asian states).
The first case study assesses ideological resistance to legal transfers and argues that laws
can move into incompatible ideological terrain provided they are not actively blocked by
the dominant ideology. This is followed by a series of case studies that show how legal
transplants are sensitive to the ways legislators, bureaucrats and judges use state power to
make and enforce law. The attitudes and processes informing lawmakers and enforcers
profoundly influence the meanings given to legal transplants. The final case study
demonstrates how non-state pressure groups influence the selection and implementation of
foreign laws.
The development of a new interpretive model has been greatly
assisted by discourse analysis, which suggests that dialogical exchanges
between lawmakers and pressure groups give meaning to imported law. This analytical approach avoids the limitations associated with conventional statecentred
analysis by directing attention towards the regulatory conversations that
give meaning to legal transfers. It asks who conducts these conversations, what
are they about and how do they advance the regulatory objectives of key
players? It suggests that the transfer of laws and ideas have similar effects,
because regulatory discourse collapses distinctions between legal prescription
and legal description. Further, it allows us to assess what types of conversations
are most likely to generate preference convergence and the adoption of imported
legal ideas. Discourse analysis also acknowledges the role played by human
agency and reminds us that the story of legal borrowing is inextricably bound up
with legal development strategies.
This study has revealed the complexity of law reforms based on
imported laws. There are simply too many processes and perspectives for one
unified theory. The interpretive model proposed in this study is intended to
complement and refocus, rather than supplant other theoretical approaches
through which legal transfers can be observed. It accounts for the main factors
that shape the meanings given to imported laws: dialogical negotiations,
effective communication, interpretive communities, strategic agendas and power
relationships. As such it can guide researchers towards the processes and
exchanges that shape and adapt legal imports into socialist transforming East
Asia, especially Vietnam.