Monash University
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Regulatory interaction in court-based resolution of inheritance disputes in Vietnam

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posted on 2017-03-05, 23:04 authored by Bui, Thi Bich Lien
There is considerable scholarly interest in understanding how state law interacts with non-state regulations in guiding disputes. Vietnam provides a useful case study, as its dispute resolution system is undergoing unprecedented change. Despite the introduction of modern law and state institutions, entrenched customs continue to shape the way people deal with and conceptualise social problems. This research investigates the complex interaction of law and customs in the courtroom by developing a detailed empirical study of inheritance litigation in Vietnam. Inheritance disputes are an important topic to study as they are central to family structures and provide glimpses into how dispute resolution is evolving in a rapidly changing society. The study moves beyond the doctrinal approach to legal research, since no established legal doctrines governing cases exist in Vietnam. It draws on the interpretive tradition and embraces a social constructionism approach. This approach does not assume that law orders disputes; instead, law is treated as a locus of social contest and construction. The aim of this research is to unravel how inheritance law and customs compete and sometimes coordinate with each other to guide judicial resolutions. The study uses systems theory and discourse analysis as an analytical framework. It draws insights from systems theory into how different regulatory systems, such as state law and social customs, co-exist, interact, and co-evolve with each other in ordering inheritance disputes. Discourse analysis is used as a methodological tool to evaluate how the main actors (judges, lawyers, disputants) in inheritance disputes communicate with each other. The study examines courtroom discourse by looking into the regulatory preferences of the main actors. It also investigates how the organisational and epistemological structures of the Vietnamese civil justice system shape courtroom communication. The study finds that customs prevail over law in guiding inheritance disputes. Limited judicial power and the absence of legal fictions that might convert custom into law contribute to this outcome. Overall, law and customs are not co-evolving. Although regulatory hybridity emerges where both law and customs do not provide clear guidance, such hybridity does not generate broadly applicable norms. The courts resolve disputes on behalf of the state, but they neither enhance the law’s authority nor bring law and customs into a meaningful dialogue. The study also identifies the weakness of institutions in promoting the co-evolution of inheritance law and customs. Legal education and lawyers’ associations are not functioning effectively because of both structural constraints and the boundaries set by the political-legal epistemology. Given these limitations, the study predicts that a tradition of legal reasoning that converts custom into law is unlikely to emerge in the Vietnamese civil justice system in the near future. Normative syncretism, rather than law, is more likely to fill the regulatory vacuum. For the broader society, the study suggests that inheritance law and customs will continue to co-exist instead of co-evolving.


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Principal supervisor

John Gillespie

Additional supervisor 1

Kerstin Steiner

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Department, School or Centre

Business Law and Taxation

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Faculty of Business and Economics

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