COMPARATIVE LAW IN A NUTSHELL

1. Why is the name “Comparative law” more popularly used than other
names? Giá o trình/9
With different languages, the terms are also used differently: Comparative Law,
Comparative Jurisprudence.

- Comparative Jurisprudence: The content is much wider, more academic, more

accurate. It includes comparative law, teaching, legal culture, legal science,
legal history. → Talk about the science of studying in general and comparing
different legal systems.
- Law Comparison is a research method.
- Comparative Law is a branch of comparative law.

From the three terms, the term “Comparative Law” is the most widely used because:

The term “Comparative Law'' used earlier than Comparative Jurisprudence, mainly
used in countries with developed legal science (US, UK, France) → Other countries,
when approaching this legal profession, often study from US, UK → more popular.

The countries that receive the name when importing this science back home means
that they have to import it from the leading countries, so they are influenced by the
ideology and attitudes of using the name to contribute to humanity expand the
name of the comparison rule to make it more common. And this is also the reason
why there are currently two original names in Vietnam, with scholars trained in
Russia, they will use the name Comparative Law. But the name Comparative Law is
still more common.

2. Please describe the different views on the nature of comparative law?

What view do you support regarding the nature of comparative law and
why?
There are 3 points of view

(1) The first point of view: Comparative law is a scientific method - a comparative
law method

Comparative law is just the application of a comparative method to determine the

similarities and differences between different legal systems in the world.
- It is only a means to examine the possibility of adapting one legal system to
another society.

 To emphasize the applicability of comparative law as a means to better

understand the law, rather than as a science.

(2) The second point of view: Comparative law is an independent science with a
specific regulatory object and research method

- The research results of comparative law should be considered not only as part of
the comparative method but also as the formation of an independent knowledge
system, so it is necessary to recognize comparative law as a science. independent
study.

- Jurists have cited the existence of other humanities and social sciences and led to
the birth of new comparative sciences such as comparative politics and comparative
sociology.

- In addition, this is a science that has its own regulatory object, comparative law not
only stops at comparing legal systems but also studies the relationship between
these legal systems, explains the source of the law. The root cause of similarities and
differences between those legal systems is aimed at reforming national legal
systems as well as harmonizing and unifying national laws.

- This branch of science uses the comparative method, which is a typical basic
method of studying legal phenomena.

(3) The third point of view: Comparative law is both a science and a scientific
method.

Comparative law is the scientific method because it is used as a means to gather

information about compared legal systems or legal phenomena.

- Comparative law is a science because it coexists with the general theory of law but
with its own knowledge system.

 Supporting the second view: Although the name may be misleading, this is a
branch of law. However, the nature of Comparative Law is still an independent
science, with its own regulated objects and specific research methods. Comparative
law is not a method of comparing laws, but a comparison of laws is the method of
this branch of law. I agree with this viewpoint because the result of Comparative law
not only finds the similaritiesand differences between the research subjects, but also
studies the relationship between the legal systems, explains why they have the
similarities and diffences in order to develop the national legal system and reconcile
with others legal systems.

3. How many popular views are there on the concepts of comparative law?
What do these views have in common?
There are many popular views on the concepts of comparative law

Rabel: “Comparative law can free the kernel of legal phenomena from the husk of their
formulae and superstructures and maintain the coherence of a common legal
structure …”

Alan Watson: “... the study of the relationship between legal systems or between rules
of more than one system ... in the context of a historical relationship ... [a study of] the
nature of law and the nature of legal development”

Michael Bogdan:

“Comparative law includes:

Compare different legal systems to find similarities and differences;

Use the similarities and differences found to explain the origin, evaluate the solutions
in legal systems, group legal systems or find out the core and fundamental problems of
the legal systems. law system; and

Dealing with methodological problems that arise in the process of comparing laws,
including those when studying foreign law”

⇒ The opinions do not negate each other

⇒ These opinions are different in research object (maybe a broader or narrower

research object)

What do these views have in common?

 Compare different legal systems to find similarities and differences → The

most important feature
 Explain these similarities and differences
 Comparative law is not the same as the study of foreign law
 Comparative law is not a branch of law
  Use enumeration method to define

4. Analyze the characteristics of the research object of the comparative

law.
Making a comparison among different legal systems to confirm their similarities as
well as differences.

Analysing those similarities + differences

 To explain why they are similar or different

 To evaluate solutions which are applied in various legal systems to solve a
certain legal issue
 To clarify a national legal systems in to its proper family of law
 To uncover common roots of different legal systems

Solving issues relating to methodologies which are used to study, to explain, to

evaluate similarities and differences of various legal systems - to deal with issues
concerning studies of foreign legal system.

Setting up and developing methodologies to study transplanting legal rules and

values among families of law in the world.

5. Among the characteristics of the research object of comparative law,

which one do you think has the most important contribution for
legislative activities?
Among the characteristics of the research object of comparative law, identifying
similarities and differences between legal systems is the most important
contribution for legislative activities because of many following reason:

 Comparative law not only points out the similarities and differences between
legal systems, but also explains the existence of those similarities and
differences, the reason why it is necessary to have a legal document. placed in
the context of the foreign legal system.
 Studying comparative law helps us to understand more deeply about the
domestic legal system because it creates an objective approach to domestic
law, with many new perspectives and necessary distances, not bound by
certain legal solutions.
 Through the study of comparative law, a new perspective will be formed
when finding out that legal systems around the world have a simpler and
 more effective way of solving similar problems. From here, legislators will
have an applied argument to clarify the perception of the need to adjust legal
regulations in a more reasonable way by replacing, amending and
supplementing current legal documents.

6. Please describe the concepts, roles, advantages and disadvantages of the

methods: historical comparison method, functional comparison method,
normative comparison method?

Historical Normative Functional

comparison method comparison comparison
method method

Concepts Based on historical Compare the Compare

periods to find out regulations and solutions used
similarities and legal documents in different
differences among of this legal societies to
different legal systems system with other resolve the
 Identify legal systems same social or
historical aspects of  Find out legal matter
social, economic, similar  Whether
political, and cultural regulations in the same
elements in different different legal solutions can be
periods and how these systems used in
elements affect the different legal
similarities and systems
differences of
different legal systems

Roles Study issues of the Study law in the Study to solve

nature (bả n chấ t) and countries that social problems
characteristics of the have the same or legal
legal system. legal systems. problems that
 Nhữ ng cô ng exist (ap dung
trình nghiên cứ u khi quy dinh
mang tính chấ t vi cac nuoc khac
mô , cụ thể xa nhau)
→ Nghiên cứ u ở
cấ p độ vĩ mô ,
 nguồ n nhâ n lự c
chấ t lượ ng cao
và kinh phí lớ n

Advantages Get an overview of all - Easy Comparison is

aspects (economy, - Simple always possible
culture, society,
politics…) related to - The researcher
legal systems. does not need to
have extensive
general
knowledge of the
legal system.

Disadvantag - Scope of study issues Cannot use this - The

es are general. They are method when researcher
not detailed to apply in - There is no must have
practice. similar extensive
-The researcher must regulations general
have a wide range of knowledge of
- there is similar the legal
knowledge in different terms but system.
fields. different
-Taking more time to meanings - Costly, waste
collect, synthesize, of time
analyze and evaluate - Difficult in
data. languages.
=> suitable for
macro research
with large
human

7. State and analyze the concept of comparative law according to Prof.

Michael Bogdan's point of view? → GT/10
Professor Michael Bogdan tried to define:

"Comparative law includes:

 Compare different legal systems to find similarities and differences;

  Use the similarities and differences that have been found to explain the origin,
evaluate the solutions in legal systems, group legal systems or find out the
core and fundamental problems of the legal systems; and
 Dealing with methodological problems that arise in the process of comparing
laws, including those when studying foreign law.”

This is a fairly comprehensive and complete view of comparative law because he

uses the identified similarities and differences to:

 Explain their origin;

 Evaluate solutions (thoughts, methods of law-making) used in different legal
systems;
 Grouping legal systems into legal families or studying inter-core issues of
those legal systems.

Although the nature and function of the Comparative Law has not been clarified yet,
but from the definition, we can see some points as follows:

 First, comparative law is not a branch of law

 Second, comparing different legal systems to find out the similarities and
differences between them is one of the most important features of
comparative law.
 Third, comparative law is not identical with the study of foreign law
 Fourth, one of the most important and interesting tasks of comparative law is
to try to explain the similarities and differences.

⇒ This definition is essentially a description of the objects of comparative law and

partly states the purposes of the comparative law method. Nevertheless, he did
highlight an important feature of comparative law that is the use of the comparative
method as the primary way to approach different legal systems or foreign laws.

8. In what ways does the Comparative Law assist the legislative work?
Comparative law plays a very active role in supporting the legislative activity of the
country because it is difficult for any country in the world to improve its legal
system on its own without any consultation and learning from the experience of
other countries. Comparative law supports legislative work in the following
respects:

- Assist in coming up with ideas about enacting new or amending laws;

Thanks to the Comparative Law, legislators can anticipate the impact of a particular
law or legal solution on social relations without necessarily conducting experiments.
From there, risks and unpredictable consequences for society can be avoided.

- Comparative law sets the stage for domestic legislators about the concept and legal
solutions that foreign legislators invent and use to regulate certain relationships.
The use of this system of legal concepts and solutions can be carried out in two
ways: (i) relying on the experience of foreign laws to develop specific solutions for
the laws of their countries; (ii) or may "transplant" or "absorb" foreign laws.

In this method, on the basis of evaluating solutions and experiences of foreign laws,
lawmakers will develop their own legal solutions for their countries to solve
problems in accordance with economic, political and cultural conditions and
circumstances, ...

"Implantation" of law means the introduction of legal norms and legal solutions
from foreign legal systems into the legal system of one's country in the process of
legal development or reform. To ensure that legal norms or "implanted" laws can
operate effectively, comparative studies will help lawmakers assess and forecast the
compatibility of foreign legal norms when applied in their countries' legal systems.

One of the most important features of law-makers is their ability to predict the
influence of the law on daily life. When their predictions or the application of the
law go wrong, the society can be adversely affected. To avoid such costly and risky
experiences, it is better to study comparative law. By this way, Comparative law can
assist legislative work in 2 ways:

Based on the study of foreign legal systems to make their own law, which is suitable
to the social, economic, political, cultural conditions of the country

Transplant legal rules and values from another legal system => To do this, have to
assess the compatibility among different legal systems

Thus, the Comparative Law expands the source of legal solutions to solve specific
problems that the laws of countries are facing. Knowledge of Comparative Law
allows jurists to objectively evaluate their own or foreign laws without the prejudice
that problems can only be solved in one way.

9. Give an example in Vietnam to demonstrate the support of comparative

law for legislative work?
The French legal system is one of the legal systems chosen by Vietnam to be used as
the main source for comparison and comparison during the drafting of the 1995
Civil Code, because of the following advantages:

 The French legal system is a written law system, which is similar to the
Vietnamese legal system. It is the formulation of precise, specific laws that
can only be changed by a competent legislative body.
 The French legal system is highly codified, and appreciated for its content,
values, techniques and role in the world.
 The French legal system is a modern legal system, the result of the process of
summarizing solutions derived from practice, from case law and from French
legal theory. This is also a system that contains a lot of foreign experience and
has many regulations of the European Community law in many economic and
financial fields (which Vietnamese legislators are also very interested in).
 The French legal system is a legal system with a long development process
and many years under the influence of the economic regime regulated and
controlled by the State.

During the discussion about the draft of the Vietnamese Civil Code, many solutions
of the French Civil Code were analyzed. The Vietnamese side has carefully studied
the French Civil Code and has absorbed some provisions of the French Civil Code
into the draft Vietnamese Civil Code.

10. Why are countries tending to increase the harmonization and

unification of laws? How does the comparative law support these
activities? Nà y cũ ng có trong GT/76
- Countries tend to increase the harmonization and unification of laws, because,
through harmonization and unification of laws, countries can apply many laws in
other legal systems which are more effective to adjust their legal relationships than
those of existing national laws. Also, solving diversity in the legal system is the key
to liberalize trade between countries.

 Harmonization of law is “ intentionally making the legal rules of two or

more legal systems more alike. ” ⇒ Decrease the differences between
various legal systems
 Unification of law is the “ intentional introduction of identical legal rules in
two or more legal systems”  ⇒ conflicting norms of different legal systems
are replaced by the most common rules.
- Comparative law support Harmonization and Unification by:

 Define some common points among various legal systems;

 Provide jurists with knowledge of laws in foreign legal systems to serve the
legislative process in terms of legal interpretation and application.
 Encourage studies beyond basic legal comparisons which provides a
theoretical basis for the development of legal rules that can be generally
applied in many different countries.

11. Please explain why the activities of comparative law cannot be

separated from the study of foreign laws? Slide 43, 44 → tạ i vì
comparative law thì cũ ng cầ n information từ study of foreign laws
Because comparative law and foreign law research are closely related. Comparative
law and foreign legal research are two independent fields, but they are interrelated
and interrelated in the following aspects:

- Firstly, comparative law and the study of foreign law share a part of the research
object and have a complementary role: the practical laws of the countries (Research
object: comparing the legal systems of the two countries). legislation to find
similarities and differences; explain the origin; deal with methodological issues
arising in the comparison process; build a methodological basis to conduct law
research, continue foreign law collection).

- Secondly, these two activities complement each other, foreign legal research
provides an indispensable source of information on different legal systems, and is
an indispensable basis for research activities, compared Legal comparison acts as a
tool to make comparisons. Without knowledge of foreign laws, it is of course
impossible to conduct comparisons.

- Third, comparative law also has a positive impact on foreign legal research by
providing the necessary legal principles to ensure that foreign legal research is
carried out easily, objectively and at the same time sets the research direction for
foreign legal research. (4 principles: the principle of the hierarchical order of law
sources, the principle of law interpretation in accordance with the manner in which
it has been promulgated, translation, and research of foreign laws placed in a
comprehensive and comprehensive province).

Therefore, the operation of comparative law cannot be without the study of foreign
law.
 12. What are the types of information sources used in activities of
comparative law? Analyze the natures of them.

There are two types of information sources: the first (the primary source) and the
second (the secondary source)

- The primary source: is the source of law in the national legal system. There are
different forms such as legal documents, court precedents, legal practice ... This is
the first source of access whenstudying foreign laws and is an official channel that
shows the content of foreign laws.

- The secondary source: is a source of indirect presentation of the contents of

foreign laws through works in the field of legal science. Shown in the form of law
textbooks, the theses specializing in law, scientific commentaries, research works ...
Collected by many different channels such as via the Internet, types of books, legal
specialized magazines. This resource may have subjective opinions of the writer
when studying the law

13. Please present the issues that need to be avoided in researching and
comparing foreign laws.

Some mistakes to avoid when studying and comparing foreign laws:

- Mistakes in identifying and collecting sources of information. The use of the law is
not really being operated by foreign countries, leading to research works becoming
meaningless and worthless. Therefore, it is necessary to ensure the up-to-date and
accurateity of information sources on foreign laws.

- Mistakes by assumptions about similarities and differences between legal

phenomena without proving by the specific contents of foreign laws. Since each
different country has a different legal system, the use of legal terms, the content of
legal institutions is sometimes also different.

- Not objective in terms of thinking when studying foreign laws. The differences in
laws betweencountries are still huge, otherwise objective will easily lead to a wrong
understanding or even a misunder understanding of foreign law.
 14. Please describe the steps to carry out the following comparative work:
Comparative study of regulations governing marriage conditions in
Vietnamese and French laws. (Đâ y chỉ là quy phạ m thô i)
- Step 1: Identify the legal issue to be compared is about the conditions of
marriage and formulate the hypothesis for comparative research.

+ In this step, questions must be given to identify the proposed research issue
regarding regulations on marriage conditions between Vietnamese and French laws.
The researchers need to find out the key legal issue which is the requirement of
legal marriage in this case.

+ Then the researcher should build up a supposition to direct the study such as the
scope of research (whether the research should be undertaken spatially and
temporally and in a holistic and comprehensive manner or not), subjects of research
(whether regulations include legislation, customs, precedents, …) and methodology
of research (which can be data collection method, data analysis method,
comparative method of history, of rules and regulations or comparative method
combining statistics).

- Step 2: Selecting the legal system for comparison: Vietnamese law and French
law

Based on the following question, researchers have to choose the suitable legal
systems to solve the legal issue. Therefore, in this case, both Vietnamese and French
legal systems are chosen, ensuring comparative abilities available, to explain the
issue.

The researchers have to notice these conditions for their suitable and detailed
selection:

+ The aim of this research is to compare regulations on marriage conditions

between French law and Vietnamese law;

+ The ability to access information sources;

+ Comparative level

- Step 3: Describing the two legal systems selected on the issue of marriage
conditions
To ensure objectivity, the researchers should not make any personal comments
about the legal system studied in this step. Rather, the researchers will describe the
French legal system and Vietnamese legal system about civil law and marriage and
family law. The researchers will pick out the facts about marriage conditions in two
legal systems for the next step.

There are possible arising matters:

+ Whether the laws on marriage conditions of the two countries can be indicated in
more than one source of law;

+ Whether the above regulations differ in history, origin and influence on the issue
of legal settlement;

+ Whether the hierarchical order of law resources is respected;

+ Whether the language barriers affect the comprehensive translation of French

law;

+ Whether the regulations in French law are interpreted in the same manner as it is
in France.

- Step 4: Identify the similarities and differences between the two legal systems,
set out the system of criteria for comparison

Based on the results of the previous stage, the researchers will identify the
similarities and differences between the French legal system and Vietnamese legal
system about marriage conditions.

- Step 5: Explaining the origin of similarities and differences, analysising and

evaluating the advantages and limitations of solutions to the marriage
conditions of the two legal systems

This step will give an assessment of the regulations on conditions for marriage in
two legal systems. Researchers can understand clearly about the nature of marriage
conditions of the French legal system and Vietnamese legal system.

These 5 steps I’ve mentioned are usually used however they are not fixed and always
applied in every legal issue when comparing different legal systems. It depends on the
researchers to establish a suitable model of steps of comparative works.
 15. Please describe the steps to carry out the following comparative work:
Legal framework on marriage conditions in French law – reference
experience for Vietnam. (nà y là cả legal resolutions, legal beliefs,..)
- Step 1: Identify and clarify the contents of concepts related to marriage conditions

- Step 2: Present and describe the contents of legal rules and regulations of the legal
system of France and Vietnam related to marriage conditions. May include
presenting socio-economic and cultural issues along with legal solutions associated
with those conditions

- Step 3: Identify similarities and differences

- Step 4: Explain the origins of similarities and differences

- Step 5: Affirm comparative results and reach final conclusions and practical and
experienced solutions for Vietnam. Develop legal solutions that according to
researchers are the most optimal for the legal system of Vietnam

16. Please analyze the content of the principle for accessing of studying
foreign law: “it is necessary to respect the hierarchical order (trậ t tự
phâ n cấ p) of law sources in the legal system of relative countries”. Give
specific examples.
We need to respect the hierarchical order of law sources in the foreign legal system,
because:

Each legal system has a separate legal structure, mainly divided into 2 sources: (1)
primary sources and (2) secondary sources.

The purpose of the classification is not to define which source is more important but
to define the role and purpose of each source for the application of each level of
research.

Moreover, determining the primary source and secondary source is not the same
among countries. ⇒ Can not have the same approach and evaluation to order of law
sources for different legal systems.

Analyze 2 sources of information:

- Primary source: legislation (code, law, subordinate legislation); customary law;

precedents.

Geographic challenges (khoả ng cá ch địa lý), searching online requires verification.

It contains national legislation with high legal credibility.

⇒ Based on this source, it is possible to determine the legal system of a foreign

country. The researchers can get an accurate overview of the foreign legal system.

- Secondary source: indirect sources (legal scientific comments, books, textbooks,

journal articles, dissertations)

Easy to approach and research.

These sources are intended to fill the shortcomings of the national legal system.

⇒ There is a mixture of objective knowledge and different opinions on a particular

issue. The researchers can be affected by others’ subjective thoughts.

- When studying foreign law, even though they are only interested in 1 specific
aspect, researchers need to study the overview of the legal system thoroughly by
researching from primary to secondary sources of information.

- We also need to avoid comparing laws isolated from the country's legal policy
because if we only study one out of 2 above sources, it can lead to wrong
conclusions and comparisons about the reality and nature of foreign laws.

Example:

- Primary sources: Penal Code 2015; Civil Code 2015;…

=> They regulate principle provisions to govern the relationships national-wide. So

if foreign jurists want to understand Civil or Criminal systems in Vietnam, they have
to access these materials.

- Secondary sources: Legal textbooks of HCMC University of Law about general

regulations of Civil law,...

=> This textbook not only contains an explanation of Articles from Primary sources
but also includes some other opinions and suggestions of writers about the current
legal systems. From this, Foreign researchers can have a better look at what VN is
lacking rather than the full principal regulations of Vietnam.
 17. Please analyze the content of principles on interpretation of foreign
laws when performing comparative works. Give an illustrative example.
 Respecting the order level of sources of law.

For example, when common law lawyers study the laws of countries belonging to
the Civil law family, they often approach legal documents that ignore or doubt the
rulings that act as precedents. published by the courts of these countries. Or when
Civil law lawyers, when studying Common law law, are too focused on the case law
of the court, while the source of written law is increasingly occupying an extremely
important position in other countries. under this common law system.

 Studying sources of law in their relationship.

 Studying a foreign legal issue completely.

Absolutely do not use personal knowledge, interpretation of laws of their own

country to use in the interpretation of foreign laws.

Must not have prejudices (định kiến) about culture, religion,... of foreign laws

 Interpreting sources of law as they are in their home legal system.

For example, the concept of crime under French law will be different from the
concept of crime under English law. Or when conducting legal interpretation, the
Anglo-American courts tend to interpret legal norms based on the spirit of the text,
while the judges of the continental courts often interpret soft text. is more flexible
and takes into account the purpose of enactment of laws based on a historical
legislative approach or logical inference.

 The way of translation in studying foreign legal system: The law of a country
must be interpreted the way it is interpreted in the country itself.

For example, English-English legal dictionary, French-French legal dictionary. If this

is not possible, a specialized bilingual dictionary should be used to look up legal
terms. However, it is still best to use a Jurisprudence Dictionary in which legal terms
are explained in the language of that country (effective only when the researcher
has sufficient knowledge of the language).
 18. Why when studying foreign laws, researchers need to put the legal
problems to be studied in a holistic and comprehensive manner?
During the research process, the research problem must be put into its entirety, all
legal issues as well as other relevant legal aspects must be studied: from the direct
governing regulations to the regulations governing indirect, from regulations
promulgated or officially recognized by competent state agencies to even "live"
regulations in practice. In addition, the research must also be placed in the political,
economic, social ... of that country. Only in this way will the researcher have a
correct view and comprehensive understanding of legal issues in the legal systems
of countries.

For example, regarding the issue of social assistance in Sweden and Vietnam: In
Sweden, with the strong development of socio-economic conditions, the main forms
of social assistance are direct subsidies such as allowances for children, maternity
benefits, unemployment benefits, allowances for the elderly. In Vietnam, stemming
from socio-economic conditions that do not allow the application of direct subsidies
as above, most types of subsidies. indirectly through forms such as tuition fee
exemption and reduction, tax exemption and reduction, legal fee exemption and
reduction, etc. in a deliberate and selective manner by subjects. Therefore, when
doing a comparative study on this issue between two countries, it is necessary for
the researcher to study the relevant legal regulations as a whole, including those
indirectly regulating this issue.

19. What is the purpose of the grouping of legal systems?

The grouping of legal systems in Comparative Law aims to create favorable
conditions for the study and teaching of foreign laws and to compare laws.

- For teaching purposes: include general classes to teach about legal traditions, no
need to organize separate classes to teach each legal system separately (or in other
words, the result of activities). This grouping action will support law teaching
activities in law universities around the world).

For example: When having a complete overview of the world legal map classified by
comparative law, it will be easier for students to know the main features of the
country's legal system that they study without having to learn all of them actual
content of legal regulations.

- For the purpose of legal scientific research: When capturing information about a
legal tradition or a legal family, the researcher can know that these characteristics
also appear in the countries of the legal family, the law and save more research time
(In the world there are more than 200 different legal systems, each of which has its
own distinct points, so we cannot and do not have the time to study all the systems).
Besides, thanks to the comparative law, the research is more convenient and faster,
and it is easy to study the good points to help improve the law of the host country.

Example: When a researcher wants to learn about the law of country A. If they have
information that determines that the law of country A belongs to the civil law
system, from here they can know the general characteristics. regarding the law of
this country, such as country A whose legal form is mainly written law, case law is
not considered a source of law, court judges have only adjudicative functions and
have no role to play. The law is divided into public law and private law.

This grouping also has the effect of deepening the nature of legal systems in the
world. Since then, each country has found solutions to further improve its legal
system on the basis of conformity with the realities of social life.

20. Among the criteria for grouping legal systems, which one is the most
important? Why?
No criterion is the most important when dividing legal systems. Because such
division can completely lead to duplication, contradiction and not achieving the
purpose of division. The legal systems are similar and different, if only based on one
criterion, the classification will not be high. For example, if only using the criteria of
legal origin, considering the legal systems derived from Roman law, the Socialist
legal system and the continental European legal system originated from Roman law
but differed in nature. In addition, for the Islamic legal system, it is impossible to
compare according to the general criteria because this system has its own
distinctive characteristics.

21. Analyze the role of each criteria in building a map of the world legal
system.
The criteria for grouping legal systems:

- Legal form

o In terms of form, legal sources are divided into two types of written law and
unwritten law.
o The written legal system includes: Civil law legal system and Socialist legal
system, The Islamic law legal system.

o Unwritten legal system (case precedent): Common law legal system.

o Countries have been tending to use two sources of written law and unwritten law
at the same time to perfect their legal systems because each form has its own
advantages and disadvantages:

+ In terms of clarity, the written law prevails.

+ Flexibility of unwritten law prevails.

+ Inclusiveness: the written law prevails.

 To make the most of the advantages and limitations of each form, countries are
increasingly to recognize both forms.

- Legal origin

o More than 200 legal systems worldwide g largely stem from: Roman law and Old
English law.

o Legal system derived from Roman law: Civil law legal system, socialist legal
system;

o Legal system derived from Old English law: Common law legal system.

o Legal System derived from the Bible: The Islamic Legal System.

o Note: The level of absorption of Roman law in the continental European legal
system.

- Law-making role of the judiciary

o With the thinking of the jurists, the legal system of continental Europe and the
legal system of the socialist countries, the role of the court is limited to the
adjudication function. Today, however, most countries in these two legal systems
recognize a expressly or implicitly admitting the existence of case law in the legal
source system, the judge also had a limited legislative role.

o In countries that follow the case law system, through judicial activities, the court
also acts as a legislative body.
o In the Islamic legal system judges also play a certain role in the law legislative
work.

- Separation of public and private law

o In countries with a tradition of case law, there is no division of law into public
and private law. This is associated with the history of formation and development of
law in England.

o Political reasons

o Reason for existence of the warrant system (writ)

o Due to the influence of the bourgeois revolution.

o The Continental European legal system has a division of law into public and
private law for the following reasons:

o Political reasons

o Cause of legal origin

o Cultural reasons.

o Countries following the socialist legal system do not have a division of law into
public and private law due to the influence of Marxism-Leninism.

o The Marxist-Leninist viewpoint on the form of ownership

o The point of view on the organization of state power.

o The countries of the Islamic legal system are not divided due to the influence of
Islam.

- The relationship between substantive law and procedural law

o Starting from the point of view of attaching importance to written law or case
law, the relationship between substantive law and procedural law between
countries is not the same.

o At the time of the formation of the British case law system, the primary concern
of common law court judges was procedural rather than substantive law.
Manifestation: the principle of adjudication in common law courts "without a
warrant (writ), there is no right".
o In countries that follow the civil law system and the resti of the legal systems,
substantive law is more important than procedural law.

- Codification of the law

o Nowadays, codification work is focused on legal systems. When using this

criterion for grouping, scholars often focus on the extent and scope of legalization of
legal systems.

o The idea of encryption appeared very early in Europe when the 12 Tables Code
was born. Codification really reached its perfection after the bourgeois democratic
revolutions in Europe succeeded. Codification is therefore a product and
characteristic of the continental European legal system.

o For countries following the precedent system, due to historical factors,

codification is not respected. Today, codification in the Anglo-American legal system
is also highly appreciated. Codification in the Anglo-American legal system
(Common law) is not as extensive as in continental Europe, but only takes place in a
number of areas where case precedent has not been adjusted.

22. How many interpretations does the term of “legal system” have? What
are the distinctive features of these interpretations?
“Legal system” is a concept that has many different connotations depending on the
context in which the term is used. There are two bonus contexts used by scholars
when it comes to the legal system:

- National legal system: This concept refers to a collection of legal articles

promulgated by the state which have an inter-unified relation. It is divided into legal
groups and fields and performed into various forms of law.

For example: Vietnam has the legal system of Vietnam; The United States has 50
states, there are 50 legal systems, so the United States is a multi-legal country

- A family of law: This concept refers to a collection of national legal systems with
many similar characteristics defined by certain criteria.

Example: Common law legal system, civil law legal system, socialist legal system

Criteria National legal system A family of law

 Composed of legal norms and
Is a combination of two or more
Form classified into legal institutions and
legal systems that have similarities
branches of law

- Overall, there is a dialectical

relationship between the norms,
regulations and laws of different
- Conventional.
countries.
Nature - Each country/territory has at
- For example, countries with a
least one independent legal system
legal system derived from old
English law belong to the common
law system.

23. What are the different ways of naming the concept of “legal system” in a
broad sense? Analyze them.
- GT/17 +Tậ p bà i giả ng/24,
- Legal Family; Legal Tradition; Legal Culture
- Legal system: This term only sets out the criterion that there must be certain
similarities between national legal systems. Although the laws of different countries
are heterogeneous, there are still similarities due to similarities in history, socio-
political conditions, ideology, and culture. Based on these similarities, researchers of
comparative jurisprudence have classified and arranged several or more national
legal systems into certain groups called world legal systems.

- Legal family = family of law: focus on similarities, especially the origin of the
national legal system, and place/group national legal systems into the same group.

→ root of legal development (France).

- Legal tradition = traditional of law: used to refer to groups of laws born in the
same cultural space, ideology (hệ tư tưở ng) and in a certain geographical area.
When using the term legal tradition, "researchers often attach importance to the
origin of the legal system," meaning that legal systems with the same origin will be
sorted into a legal tradition as is the case in countries where legal systems exist.
derived from Old English law commonly known as the Common Law Tradition or
the Anglo-American Legal Tradition.
 → common law / ancient English law

⇒ all of the above terms have the same purpose: place the legal systems which have
the same / the specific similarities into a group.

24. Indicate the development trend of legal systems in the world.

The legal systems in the world are tending to "close together", that is, the
similarities between the legal systems are increasing while the differences are
decreasing. The cause of this trend is the influence of the process of expanding
relations in mutual cooperation and international integration. With two ways of
implementation: through the process of legal harmonization and legal unification.
Evidence for this trend of "closeness" is the mutual reception between the two
traditions of Common law and the tradition of Civil law, or the receptivity of Islamic
law to Civil law and Common law.

25. Analysis of conditions for grouping the Islamic legal system.

There are 02 basic factors, prerequisites (tiên quyết) to determine whether a
country belongs to the Islamic legal system or not:

- Islam is the national religion of that country ~ Islam is recognized the most
important religon by the government.
- Countries that take the provisions of Islam as their law
 Islamic law has religious norms elevated to legal status, to regulate problems
arising in society (Luậ t Hồ i giá o có cá c quy phạ m tô n giá o đượ c nâng lên
thà nh quy phạ m phá p luậ t, để điều chỉnh cá c vấn đề phá t sinh trong xã hộ i)
 Islamic law is said to be made by God once and cannot be changed. Society
must obey the laws of God

(Turkey is belong to Continetal Law athough Islam is the national religion. Because
Islam is only considered a religion, not a law).

26. Analysis of sources of Islamic law.

There are 04 primary sources of Islamic law: the Qu’ran, Sunnah, Qiyas, Idjimá .

- The Qu’ran is the book which contains revelations the prophet Muhammad
received from Allah.
 The Quran regulates the individual; social, secular, and spiritual life of
Muslims → related to religion → briefly, many issues haven't been solved.
  The Quran can be no way altered or changed, thus, even the courts of law
have no authority to change the apparent meaning
- The Sunnah can be roughly translated to mean the traditions and practices of the
prophet Muhammad. There are three types of Sunnah.
 The first is the sayings of the prophet – Sunnah Qawliyyah/Hadith.
 The second is the actions of the prophet – Sunnah Al Filiyya.
 The final is the practices prevailing during Muhammad’s time which he did
not oppose – Sunnah Taqririyyah.
- Idjimá: was born on the unification of legal opinions of legal scholars (đượ c ra đờ i
trên sự thố ng nhấ t về quan điểm phá p luậ t củ a cá c họ c giả phá p lý)
 Offer new solutions that are suitable for modern life but still based on the
general principles of legal sources: The Qu’ran, Sunnah.
 The judge has a great deal of power in deciding which point of view to apply
to a particular case
- Qiyas: judges use Qiyas to resolve new cases that have not yet been regulated in the
Qu’ran, Sunnah, Idjimá .

27. Analysis of similarities and differences of Continental law and Socialist

law.

● Similarities:

- Both legal systems have their form of law is written law, which means that
they are formed based on legal documents → Consider statutory law more
important than case law.

- The origin of law: Originated from Roman law

- Roles and balance between substantive and procedural law: Both focus on
substantive law.

- Inquisition procedure

- Have a high level of codification (Codification often takes place in areas where
there is no case law).

- The jurists in both legal systems have been educated systematically with
comprehensive and complete knowledge systems in different fields of law.

● Differences:
 Continental Law
Criteria Socialist Law
(Civil law)

Forms of law Written law

- Stemming from Roman law;

Origin - Derived from continental European countries,
most notably France and Germany.

As both legal systems are

formed based on legal
documents (written
Characteristics
law). Therefore, they are
generalized and highly
stable.

Roles and balance

between substantive Focus more on substantive law
and procedural law

The Continental Law There is no separation

legal system can be between public and
divided into public law private law in Socialist
Recognition of division
and private law. law due to the influence
of public and private
of Marxism, though
law
influenced by the
continental European
legal system.

Codification is the All law is custom.

characteristic and
Level of codification product of Civil Law. All
law resides in
institutions.

Internal legislation International treaties International treaties are

 are applied directly as not part of domestic
part of domestic law law. They can only be
without having to go applied by the courts
through the process of when the International
codification by the Treaties have been
legislature before they codified by the
can be applied at trial. legislature.

Interrogation Litigation proceedings

Proceedings
proceedings

It is the body that Do not make precedent.

applies the law and is Courts are subordinate
The role of the court not allowed to to the legislature.
participate in legislative
activities.

Not appreciated Appreciated

The role of the lawyers

Be trained in a unique Most of the selected

and professional judges are good and
Judges
process. They are usually reputable lawyers.
not lawyers before.

France, Germany, Italy, Vietnam, China, Laos,

Countries
Brazil, Venezuela,... North Korea, Cuba

28. Analysis of similarities and differences of Continental law and Common

law.

Others Name Civil law Common law

Continental law  English - American

 (hệ thố ng luậ t Châ u (hệ thố ng luậ t Anh - Mỹ)
 u lụ c địa)

Romano - Germanic Anglo - Saxon

law

Written law Precedent / Case law

(1) Form of law Legislation Precedent

(2) Origin of law / Roman law Ancient 

Source of law
English law

(3)Role of courts Don’t make Make precedent

precedent

Courts share in balancing power

Courts have equal
but separate power

(4) Roles substantive laws > substantive laws < procedure laws
substantive and procedure laws
procedure laws
tố tụ ng tranh tụ ng (Case system/
(which is more
tố tụ ng thẩ m vấn, tố oral argument)
important?)
tụ ng viết
(inquisitorial
system/ written
argument)
thẩ m phá n tạ o ra cá c qui tắ c phá p lý
cho cá c tranh chấ p cụ thể
qui tắ c phá p lý tạ o ra
 nền tả ng để thẩ m
phá n ra quyết định.

(5) Recognition of Recognized khó phâ n chia

division of public
chia thà nh luậ t cô ng
and private law
(public law) và luậ t
tư (private law)

(6) Levels of All law resides in

codification institutions

(luậ t phá p là phả i từ

cá c chế định cụ thể)

Phá p, Đứ c, Itala, Australia, United Kingdom (except

Brazin, Venezuela Scotland), Israel, India, Cyprus,
Countries
Nigeria, Republic of Ireland,
Singapore, Hong Kong, United States
(except Louisiana), Canada (except
Quebec), New Zealand, Pakistan,
Malaysia, Bangladesh

29. Analysis of similarities and differences of Socialist law and Common law.
(Slide so sánh)

Others Name Common law Socialist law

English - American Soviet law

(hệ thố ng luậ t Anh - Mỹ) (There is controversy as to
whether socialist law is
Anglo - Saxon
 Precedent / Case law a separate legal system or
not.)

(1) Form of Precedent Legislation

law

(2) Origin of Ancient  Roman law

law / Source
of law English law

(3) Role of Make precedent Don’t make precedent

courts

Courts share in balancing Courts are subordinate to

power the legislature 
(Tò a á n trự c thuộ c cơ quan
lậ p phá p)

(4) Roles substantive laws < procedure substantive laws >

substantive laws procedure laws
and
procedure
laws tố tụ ng tranh tụ ng (Case
(which is more system/ oral argument)
important?)

thẩ m phá n tạ o ra cá c qui tắ c

phá p lý cho cá c tranh chấ p cụ
thể

(5) Do not accept division High

Recognition of
division of
public and
private law

(6) Levels of All law is custom

codification

(luậ t phá p đượ c hình thà nh

từ tậ p quá n)

Australia, United Kingdom VN, China, Laos, North

(except Scotland), Israel, Korea, Cuba
Countries India, Cyprus, Nigeria,
Republic of Ireland,
Singapore, Hong Kong, United
States (except Louisiana),
Canada (except Quebec), New
Zealand, Pakistan, Malaysia,
Bangladesh

30. Point of the concept of “mixed legal system”. Give specific examples.
- Legal systems generally are 'mixed' in the sense that they have been
influenced by a variety of other systems.
- Ex: Mixed jurisdictions are The Seychelles, South Africa, Louisiana, the
Philippines, Greece, Quebec in Canada and Puerto Rico.
- Japan
The notion of mixed legal systems is essentially a modern idea that increasingly
shapes discussions about the nature of the world’s legal systems.
Mixed legal systems refer to legal systems where two or more of the above legal
systems work together. (Civil Law, Common Law,...) → Legal systems generally are
‘mixed’ ~ they have been influenced by a variety of other systems → known as
“hybrid systems”
There are three major ways in which a mixed legal system can be “born”.
 Most common is the birth of a mixed legal system as a product of failed
colonialism (sả n phẩ m củ a chủ nghĩa thự c dâ n) where a culture was imposed
by a colonialist power, but where a native culture persisted to some degree
 The method of borrowing and transplanting contributes to modern mixed
legal systems. These systems took advantage of the basic possibility to choose
from the rules of different systems in order to figure out and employ the
 “best” for their own purposes (lự a chọ n cá c quy tắ c củ a cá c hệ thố ng khá c
nhau nhằ m tìm ra và sử dụ ng “tố t nhấ t”).
 marked by law students and academics going abroad and returning with
ideas and influences from another legal system in their luggage and then
exercising their legal profession and of course also making use of those
influences (sinh viên luậ t và cá c họ c giả ra nướ c ngoà i và trở về vớ i nhữ ng ý
tưở ng và ả nh hưở ng từ mộ t hệ thố ng phá p luậ t khá c trong hà nh trang củ a họ
và sau đó thự c hiện nghề luậ t củ a họ )