THE SOCIALIST RULE OF LAW OF VIETNAM: FROM THE POLITICAL PHILOSOPHY VIEWPOINT

ABSTRACT

The rule of law is a form of organization and a mode of power operation. In this state, power belongs to the People, and that power is institutionalized into law and guaranteed to be implemented by the state apparatus, socio-political institutions, social institutions and by the People for the interests of themselves. In general, the rule of law is an inevitable trend of the development and movement of the state and the society. In this article, we focus on explaining some basic theoretical issues of the socialist rule of law of Vietnam.

АННОТАЦИЯ

Правовое государство - это форма организации и способ функционирования власти. В этом государстве власть принадлежит народу, и данная власть подкрепляется законом и гарантированно реализуется государственным аппаратом, общественно-политическими институтами, общественными учреждениями и самим народом в собственных интересах. В целом, верховенство закона - это неизбежная тенденция развития и движения государства и общества. В этой статье автор дает ответы на основные теоретические вопросы, касающиеся социалистического правового государства Вьетнама.

Keywords: the rule of law, the socialist rule of law, Vietnam, democracy, socio-political institutions. 

Ключевые слова: правовое государство, социалистическое правовое государство, Вьетнам, демократия, социально-политические институты.

Introduction

The purpose of the movement and development of human and society is to achieve true values including: freedom, equality, democracy, justice and civilization. As a fact, these values are historic. To realize these lofty goals, people must unite with each other in different ways. In the history, human-being used to unite as Clans, Tribes and Nations. However, the union between people or the organization of society as an ethnic group, a nation, meaning a political nation, or in other words a state is the most effective way to achieve these goals. The chattel slavery state, the feudal state, the bourgeois state, and the proletariat state are historically different states and represent different levels or ladders of social progress and all have a certain contribution to the process of human liberation. Obviously, the rule of law is the optimal solution, which brings people new strength and the highest quality of life compared to other ways of social organization. The rule of law is a form of organization and a mode of power operation. In this state, power belongs to the People, and that power is institutionalized into law and guaranteed to be implemented by the state apparatus, socio-political institutions, social institutions and by the Peoplefor the interests of themselves. In general, the rule of law is an inevitable trend of the development and movement of the state and the society. The definition of the rule of law exists at various levels: Universal - Specific - Unique. The socialist rule of law of Vietnam, a form of state organization and a determined method of operating power in reality, is both universal and specific.

Within the framework of the chapter on the socialist rule of law of Vietnam from the perspective of political philosophy, we focus on explaining some basic theoretical issues: 1) The theoretical basis of approaching political philosophy on the rule of law state. 2) Some theoretical issues on the universality and specificity of the socialist rule of law of Vietnam.

1. The theoretical basis of approaching political philosophy on the rule of law

1.1. The views of Marx and Engels on the democratic

Marx distinguished different stages in the development of the political state. Marx wrote: “To states in ancient time, the political state is the content of the state, excluding other fields; Whereas, the modern state is a reciprocal adaptation between the political state and the non-political state” [4, p. 352]. He further pointed out: “The abstraction of the state with characteristics of a state is the specific trait of the modern period only, since the abstraction of private life only exists in early modern period. The abstraction of the political state is a product of the present day” [4, p. 353].

To Marx, the best replacement of the political state is the democratic state or the non-political state in other words. Marx had discussed deeply on this and stated that the democratic state is the return of state to its true nature. It was the first question raised by Marx that in a society where the People have all power in their hands, do they need to organize the so-called state and the answer according to Marx is "absolutely affirmatively not", However, unless it is a state "standing for the will of the people", it will be in name only" [4, p. 394]. This is grounded, according to Marx, state, essentially, is like a family, a civic society, or a "form of social existence”. Marx also described it as a form of "expressing current universality", the "highest social reality" of mankind. Consequently, as a level of development of a society, the state, that is organized optimally, is rational and crucial for human to be freedom. The state that could play such a role is what Marx called a "democratic state" or a "democracy".

Marx used a metaphor of Breed and Species to demonstate the concept of "democratic state" in his understanding. According to Marx “Democracy is the species concept, while the monarchy is just one of the varieties breed of the state, even the bad one. Democracy is the content and the form, yet monarchy seems to be a form with a distorted content solely. Under a monarchy, the People as the whole is subjected to one of their modes of existence or the political regime. In a democracy, the state regime manifests its nature as one of the prescriptiveness or more specifically the self-determination of the People. In the monarchy, the People belongs to the state. In a democracy, the People owns the state. If each forms of state raise a puzzle, the Democracy is believed to be the key to solve them.  To be more detailed, the state regime itself is not only judged by its nature, but its existence and its realism that whether it is the career of the People themselves and whether it develops towards its real basis – realistic people, realistic citizens. Such a state regime presents its true form as a human-being’s product of freedom. Even though there are some who argue that this charactertistic is also true in constitutional monarchy regime, the Democracy state and the constitutional monarchy are still different. The distinctive feature of democracy is that the state system is generally just an element of the people's existence, the political system itself does not constitute the state [4, p. 349].

Typical charateristics of the "democratic state" were pointed out by Marx as follows:

“Democracy is the essence of any state system in which people is socialized as the particular form of the state regime. Democratic regime relates to all other forms of state as a species does to its breed. However, a species itself is also a form of existence, and inside a species there are several forms of existence that do not conform to its nature. These are considered particular breeds of the species. ... Under democracy, people do not exist because of the law, but the law exists because of people. This means human existence is law, whereas under other forms of state, human being is the existence regulated by law. These things are the basic characteristics of democracy” [4, p. 351].

We can see that Marx was particularly interested in legal issues among a various elements of Democracy. According to Marx, in all other forms of state, the state, the law, and the state regime are the dominant factors, but the state does not really dominate all, because it does not materially penetrate the content of other non-political domains. In the democracy, the state regime, the law, and the state itself, insofar as the state is a definite political system, are only the self-determination of the People and the defined content of them [4, p. 351].

From the above concept, Marx drew out general conclusions about the difference between the democratic state (sometimes he called it the modern state) and other state regimes as belows:

“The difference between the modern state and the other states with the physical unity of the People and the state, is not about the fact that the elements of state have developed to a particular level of reality, but the democratic state regime itself has developed with the people's real life to the point of particular realism, and the political state has become the regime of all other aspects of the state" (K. Marx and F. Engels, Complete Volume, Volume 1, 1995, 354). In other words, "All other state structures are particular forms of the state. In a democracy, the formal principle is also the material principle. Therefore, only the democracy is the true unity between the universality and the particularity” [4, p. 351].

In summary, it can be seen that Marx and Engels had given us very important instructions when studying the issue of democracy. Marx and Engels' analysis of democracy are models of the application of historical materialism and dialectical materialism. Marx and Engels had comprehensively analyzed the problem of state in both sides of logic and history. In terms of logic, they outlined the objective laws of the birth, development and death of the state at a high theorical generalization level. In terms of historical side, they surveyed the actual movement of the state in social life. In particular, they have indicated the essential levels of the state and its transformation between forms of existence. These are important guidelines in the process of studying the current socialist rule of law of Vietnam.

1.2. Ho Chi Minh Thought on Democracy

In the most general sense, democracy, according to Ho Chi Minh, means political power belongs to the People. “The People is the master of the government. The People elects representatives to act on their behalf. This is democracy" [2, p. 263]. This is the affirmation, or more precisely the guiding spirit that had been raised by Ho Chi Minh since the national liberation revolution was still taking place.

The mastery status of the People, or the people's relationship with state power, was clarified by Ho Chi Minh in relation to the status of the state cadres who directly hold state power. He wrote: “Our country is a democracy, the People stands at the highest position, because the People is the master. In the revolutionary apparatus, from the sweeper, the cook to the President, all are assigned to be slaves of the people” [1, p. 434]. He advised state officials that “Remember the People is the master. The People is water, officials are fish. The People is the source of force.". When it comes to the status of public servants towards the People, Ho Chi Minh clearly stated the purpose of their work was for the common good. In other words, the state is a part of society working for the common interests of all labouring people and the whole society.

If the People is the master, then the state and state officials are their public servants. This is the unique creation of Ho Chi Minh, which clearly demonstates the contrast of the nature between the People state and the feudal state or the colonial state.

The connotation of the concept of democracy was also clarified by Ho Chi Minh in its relationship with the concept of dictatorship. We all know that, Lenin, in his important work of political theory - State and revolution, also analyzed the relationship between democracy and dictatorship to clarify the nature of democracy and dictatorship in the political system of the socialist state. Ho Chi Minh did not talk much about the issue of dictatorship. Ho Chi Minh's discussions on dictatorship are all related to the issue of democracy and he considered it a means of ensuring and implementing democracy. Ho Chi Minh's ideological focus was on democracy. Written by:

“Democracy is the people's most precious possession. The dictatorship is the lock and the door to prevent vandalism. If a box has no lock, a house has no door, all will be stolen. Therefore, there must be a lock for a door, and a door for a house, since the dictatorship is needed to preserve the democracy” [1, p. 457].

Ho Chi Minh's ideology on democracy was built on the basis of the awareness of the People’s invincible power. He wrote: “Nhân means the People. There is nothing as precious as the People. In the world nothing is stronger than the united force of the people” [3, p. 453].

In Ho Chi Minh's thought, the state’s power belongs to the People. This means the state must do everything to bring a happy life to its people. Bringing benefits to all people is the guiding principle of all state activities, according to Ho Chi Minh. No matter how the state should really represent the interests of the People.

Rooted from the idea that the People is the subject of political power, Ho Chi Minh's democratic ideology was developed into the People is the subject of the state. Therefore, it is a must to consider the state problem in Ho Chi Minh's ideology as an aspect of his ideology on democracy to understand his thought on the state comprehensively.

The State, according to Ho Chi Minh, belongs to the People. He said “Our State promotes democracy to the highest extent, as the nature of our State is the State of the People. Only when democracy is developed to its highest level, will it be possible to mobilize all the people's forces to advance the revolution. At the same time, it is necessary to reach a high level of unity to unify the leadership of the People to build socialism”.

People use the state as a tool to realize their interests: “For the People, the new democratic state's tools, such as: Government, law, police, or army - are to preserve the interests of the people” [2, p. 265].

When discussing the state, Ho Chi Minh gave a view on the state management of the People. This is a step to further clarify the people's responsibility to the state. It is worth noting here that the state conducts activities to not only serve the interests of the People, but aslo create opportunities for the People to participate in state management.

Thus, on the basis of applying the Marxism-Leninism theory on the state in accordance with the specific conditions of Vietnamese society, and on the basis of researching and summarizing from the practice of building the government of the People, a new level of social system, Ho Chi Minh indicated the basic ideas of a democratic state. These are really valuable instructions for the construction of the socialist rule of law in our country today theorically and practically.

2. Some theoretical issues about the popularity and specificity of the socialist rule of law of Vietnam

These days, to build a socialist rule of law of Vietnam, it is needed to build a solid theorical basis, which could solve key issues and act as a support element when dealing with specific problems. The most vital issue here is “What is the definition of socialist rule of law of Vietnam?”

Approaching the problem from the political philosophy prism, applying the Marxism perspective and Ho Chi Minh's thought on democracy, absorbing and inheriting the research results of domestic and foreign theorists, it is possible to propose a definition of a socialist rule of law as follows:

The socialist rule of law of Vietnam is an organizational form and a mode of power operation in a way that power belongs to the People. The power is institutionalized into law and guaranteed to be enforced by the state apparatus, socio-political institutions and the People themselves. Under the leadership of the Communist Party, the People and the state aim at building a wealthy society of the People, a strong country of democracy, justice and civilization.

From the definition of the socialist rule of law of Vietnam, we can see that its content includes the following basic signs:

Firstly, the socialist rule of law of Vietnam is not a type of state, but rather a form of organization and a way of operating the people's power.

The Socialist rule of law of Vietnam is a sign of a democratic development level, a way of organizing democracy, and organizing the state and society on the democracy foundation. Rejecting the view that the rule of law is a type of regime has an important cognitive significance in recognizing the true nature of the rule of law state. This meaning covers the following aspects:

Only since bourgeois democracy appeared, there were opportunities and conditions to build a rule of law. Therefore, in fact, the bourgeois rule of law is still being built in most of the developed and developing capitalist countries.

The rule of law as a way of organization and operation of a state and a social regime is not only built under the capitalist regime, but also under the socialist regime. Therefore, in theoretical awareness as well as in practice, there are the bourgeois rule of law and the socialist rule of law.

Besides common values, the rule of law also includes particular values. The particularity of the rule of law is determined by many factors. Essentially, these factors are extremely diverse, various and complex. They are determined by the historical, economic, cultural, psychosocial and geographical conditions of each country. These factors not only create the uniqueness and distinctiveness of each country, each ethnic group in the process of the social development, but they also determine the range of common values that the rule of law could absorp and tolerate. In this sense, the rule of law is a category that is universal as a common value of humanity and specific as a particular value of each nation. Therefore, it is not possible to have a rule of law as a unified common model for all nations and peoples. Each country depending on its historical, political, economic, social and development traits, builds for itself an appropriate model of the rule of law.

Secondly, in the socialist rule of law of Vietnam, the people's power is institutionalized into a law that is both universal and specific.

When discussing the universal values ​​of the rule of law state, almost everyone confirms that the law should hold the supreme position, and should be the leading and indispensable factor. This is true with the following further explanation. As analyzed above, the rule of law and the law are not identical. Law is the will of the ruling class institutionalized into law and everyone is obliged to obey. However, if the will of the ruling class is suitalble or consistent with the will of the People, then it is identical with the rule of law. Thus, the nature of the ruling class determines the nature, the scope and the level of power of the People. As a result, it determines the legitimacy of the rule of law.

The power of the People manifests in all life’s aspects including political, economic, cultural and social aspect, which is the power system or the power scope of the People. This demonstates the common value of the rule of law. Basing on universal values to recognize the specificity of certain rule of laws in reality indicates the dialectical thinking. Theoretically, the socialist rule of law of Vietnam has the nature of the working class. It is a "semi-state" with the political function and the broad social function. Such a state has the best conditions for expand the power scope of the People. Thus, in practice, there is a difference between the bourgeois state and the bourgeois rule of law. Also, there is a distinction between the socialist state and the socialist rule of law.

The power of the People is not something general or abstract. It is expressed through their knowledge, feelings, will and practical activities that are formed during the development of society. In short, the power of the People is their practical capacity. Therefore, it is necessary to realize that the power of the People is historical. Although it is not infinite or endless, it is invincible. The power of the People has a limit, also known as the level of power. The power level of the People, just like the power scope, is both universal and specific to the essential levels of the rule of law. The distinction or difference between the bourgeios rule of law and the socialist rule of law is in the degree of power that their people could attain.

The power of the People must be institutionalized into law and recognized legally. Everyone is obligated to comply with that "thousand-pound weight" law. Only then will we create a solid premise and condition for the process of perceiving and following the necessity to achieve the people's freedom. The universal value, or "common denominator", of the rule of law is in institutionalizing the people's power into law. While the specificity of the state in countries and ethnic groups is manifested in the way the power is institutionalized. The way of "institutionalization" is related to aspects of subject, goal (content) and method. These are variables, so the institutionalization of people's power could be different in different socio-political institutions or even similar political institutions.

 Institutionalizing the people's power into law in the socialist rule of law of Vietnam is implemented by a system of subjects including Communist Party, State, socio-political organizations, socio-professional organizations (indirect or representative democracy) and by the People themselves (direct democracy). Therefore, the socialist rule of law of Vietnam is essentially a democratic state, or more precisely a democracy. The approach towards a model of a tolerant and humane rule of law of Vietnam could be considered as the cross-cutting viewpoint throughout the process of building and developing the rule of law in our country.

The objective of the institutionalization of people's power is to achieve a complete, synchronous and balanced legal system that appropriately reflects the scope and level of power of the People. That rule of law system is a tool to build a wealthy society of the People, a strong country of democracy, justice and civilization.

The method of institutionalizing the people's power into law is implemented depending on the positions, roles, functions and tasks of the subjects, and the nature and the linkages form between the subjects. The system of subjects that institutionalizes people's power has the following properties and forms of association:

Firstly, each subject has the independence in institutionalizing the people's power when it performs specific tasks, which are suitable to its position and function. This can be called "independent method".

Secondly, some subjects could combine to each other in the institutionalization of the people's power when they perform their own tasks in accordance with their functions and responsibilitites. This can be called "combined methods".

Thirdly, all subjects coordinate with each other in implementing the institutionalization of the people's power when they perform common tasks. This can be called "coordinating method".

It can be seen that the "independent", "combined", and "coordinated" methods of the process of institutionalizing the people's power into law are common at all levels of the rule of law state. However, the specific way to implement those methods is particular to each certain socio-political institution. Therefore, there are socio-political institutions that choose to divide power according to the "separation of powers", and there are some that choose the option of "division of power".

The Vietnamese working class under the leadership of the Communist Party is a powerful entity with a decisive role and position in the system of power subjects of the socialist rule of law of Vietnam. Theoretically, interests, or the will or power of the working class and the People is united, so when it is institutionalized into law, this law is synonymous with legislation. However, in reality this does not take place in every social space and time. If that situation has been existing and will happen in the future, then although it still has the form of a socialist state, in terms of content, it is no longer a rule of law.

Thirdly, the people's power is guaranteed to be implemented by the state apparatus, socio-political institutions and the People themselves. This present the universal and specific characteristics of the socialist rule of law of Vietnam

Institutionalizing the people's power into law is a prerequisite, but it is not enough. The issue of ensuring the people's power to be implemented in practice is a decisive issue in the process of building the socialist rule of law of Vietnam.

The people's power is legalized but under what conditions and in what manner it is guaranteed to be exercised? This is also a universal feature of the rule of law state. There are two basic modes of exercising the people's power: Direct democracy and representative democracy.

Direct democracy means people directly expresses their power over fields of political, economic, cultural and social. This is an effective method, which gives people, the supreme and sole subject of state power, the ability to actively and proactively participate in the State's activities in all fields of social life. The implementation of direct democracy in terms of the scope and extent of power, of which the People is the subject, is one of the important criteria of the rule of law state. Direct democracy is a universal value formed during the historical development of mankind. Whereas, the specificity of representative democracy depends on the practical capacity of the People, the political culture traditions, and the socio-economic conditions of each country or nation.

Representative democracy is the basic form through which the People exercises their power through socio-political institutions elected by the People. This is also a common feature showing the universal value of the rule of law. Representative democracy is the authorization of the People for socio-political institutions to represent them in exercising their power. Therefore, it can be said that, at all levels of the rule of law, the People is both the subject and the object of power. The rule of law of all states is manifested in the possibility of the power corruption or the extent of the power corruption. The difference or distinction or specificity of the "existing rule of law" states is shown in the capacity of the "representative agencies".

Both direct democracy and representative democracy are forms of democracy and they have an organic relationship with each other. Direct democracy allows to maximize people's participation in public affairs, but this depends on citizen's understanding on democracy. Representative democracy assures a high performance in realizing the people's mastery right, but it depends on the ability to exercise functions and tasks of the representative and the representative agency. Therefore, using both forms and promoting them effectively is a way to recognize the "rule of law content" of a particular state.

To ensure that the people's power is exercised through the implementation of direct democracy and indirect democracy, a particularly important condition cannot be missing is the power limitation and the power control. Most scholars emphasize the problem of power limitation and power control as prominent features of the rule of law. However, it should be noted that in the rule of law, the mandatory requirement is to limit and control the power of the state as well as other subjects. There is a principle expressing the only significant distinction between limiting and controlling the power of the People and other subjects. It is "the People can do everything that is not prohibited by law and state officials can only do what the law allows.”  The way in which power is limited and controlled is the main issue of limiting and controlling the power. It also shows the specificity of the rule of law in each country and nation.

The issue of ensuring the exercise of the People’s power is one important content of the socialist rule of law of Vietnam. The issue of implementing democracy is a matter of particular concern to the Communist Party.

The Sixth Party Congress (1986) raised four great lessons, including the following one: "In all its activities, the Party must thoroughly grasp the ideology of "considering the labouring people as the tree root", building and promoting their right to mastery” [5, p. 29]. The Congress emphasized “Our state is the instrument of the socialist collective mastery. It is organized into a political authority by the working class and the labouring people. In the transitional period, our state is a specialized of the proletariat implementing the socialist democracy. Under the leadership of the Party, the state function is to institutionalize the rights, interests and obligations of the labouring people into law and to manage the economy and society according to the law. Our State must ensure the labouring people have real democratic rights, and at the same time resolutely punish those who violate the people's right to mastery” [5, p. 117].

From the 7^th Party's National Congress to the 10^th one, the content of promoting democracy continued to be discussed clearly. The 11th Party Congress (2011) clearly stated the goal of Continuing to build and perfect a socialist democracy, ensuring that all state power belongs to the People, all lines and undertakings of the Party and policies and laws of the State are for the benefit of the people; cadres and civil servants must respect the People, devote themselves to serving the People, and fulfill their assigned responsibilities and tasks well. There are specific mechanisms for the People to practically exercise their right to direct ownership... Promote democracy, uphold social discipline, discipline and civic responsibility; criticize and severely punish those who violate the people's right to mastery.

At the 12th National Congress of the Party (2016), the issue of promoting democracy was affirmed through the renewal of the Party's leadership method. Specifically, Continuing to summarize the practice, study the theory of the ruling party, in which it is needed to clearly define the ruling purpose, the mode of administration, the governing content, and the governing conditions, study the issue of promoting democracy in the condition of a single party ruling the state and the risks that need to prevent for the ruling party.

In order to control power effectively, the people's intellectual level must be raised and the Peopleneeds to truly master all the affairs of the country. The 12th Party Congress clearly stated that “to continue promoting socialist democracy, ensuring all state power belongs to the People, all guidelines and political program of the Party, all policies and laws of the State are rooted from the people's legitimate aspirations, rights and interests, and these must be consulted by the People. The People have the right to question and demand explanations from state agencies, to protest against wrongdoings, and to demand cadres who are not qualified to resign. Encourage the public to criticize and oppose wrongdoings to increase the resistance of the social body. Strongly promote the synergy of the whole political system and the whole people in controlling power. Building and implementing sanctions and mechanisms strong enough so that organizations, groups of people and individuals assigned to power must perform correctly, fully, responsibly. To assigned tasks, they dare not - cannot - do not want to abuse power for personal purposes and benefits.

The struggle against power corruption and the control of power requires high political determination of the entire Party, people, army, and political system, under the leadership and direction of the Party. Such a determination creates the synergy to help the struggle perform at the highest efficiency. The control of power must be based on a combination of building and resisting. Construction is the main work, while resistance is the work to be done resolutely, seriously. The resistance is the foundation of the construction. There is no “no-go zone” in the Control of Power. Any who abuse of power, or conduct corruption for personal purposes and "group interests" all are examined, inspected, investigated, reviewed, concluded and punnished strictly according to the discipline of the Party and the laws of the State, no matter what position they are holding, what level they are in. Supplementing and perfecting the Party's regulations and the State's laws to have a strict power control mechanism and strict sanctions to penalise organizations and individuals who abuse power, take advantage of power for personal purposes and interests, and "group interests". Party officials and members must be closely managed, especially leaders and managers, to prevent corruption, power corruption and "group interests".

Conclusion

Building the socialist rule of law of Vietnam is an inenvitable necessity of the social development under the socialist model in Vietnam today. There are many different approaches and contents on building the socialist rule of law of Vietnam. Studying the Marxism view and Ho Chi Minh's thought on democracy is an approach to show the universality and specificity of the socialist rule of law of Vietnam, one of the important factors contributing to the success of building the socialist rule of law of Vietnam today. The Marxism view and Ho Chi Minh's thought on democracy have a significant role in the process of perceiving and the practice of building the rule of law in general, the socialist rule of law of Vietnam in particular.

In the process of building the socialist rule of law of Vietnam, the Marxism view on the democratic state has been applied by President Ho Chi Minh, the Communist Party of Vietnam and researchers, through which the Marxism view of the democratic country has gradually transformed into the theory of the socialist rule of law of Vietnam. The theory has gradually realized in practice. However, in reality the understanding and application of Marxism-Leninism views on the democratic state to the process of building the socialist rule of law of Vietnam is a process that still needs to be conducted theorically and practically (both urgent and long-term). Practically, building a national government not only poses many new problems that need to be solved, but also requires further research to better understand and apply more creatively the viewpoint of Marxism – Leninism and Ho Chi Minh's thought on democracy and democratic state.    

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