New Article: Penal Reform in Viet Nam 1985-2005
Judith Henchy <judithh@u.washington.edu>
date Feb 14, 2007 10:17 AM
subject [Vsg] New Article: Penal Reform in Viet Nam 1985-2005
Celine Marange, « Les faux-semblants de la reforme du droit penal vietnamien
(1985-2005) » (The Pretences of the Vietnamese Criminal Law Reform),
Critique Internationale, n°33, October-December 2006, pp. 79-107, in French.
The Pretences of the Vietnamese Criminal Law Reform (1985-2005)
Summary
This paper aims to demonstrate that, contrary to appearances, the Vietnamese
criminal law reform launched in the early 1980's has not led to the
depoliticization of penal practice and of crime qualification. It also shows
that the legal mechanisms of social control have not replaced the
preexistent disciplinary ones, but have been overlaid on them. Our argument
hinges on three developments:
1. The criminal law codification, the rationalization of the judiciary
organization and the reinforcement of legality control point toward the end
of anomy of the revolutionary period and, to some extent, of "rule by
morality". They establish a "rule by law", but not a "rule of law" for the
reinforcement of legality has only aimed at strengthening social control, at
defining the impact of economic reforms and at providing the regime with a
new source of legitimacy, of the legal-rational kind.
2. The depoliticization of incrimination in the 1999 Criminal Code is only
superficial: the mark of socialist law theories, of revolutionary justice
and of custom law on the definition of penal responsibility, the
qualification of crime and its organization into a hierarchy remains
apparent.
3. The economy of punishment remains unchanged: it is based on repression,
exemplarity and reeducation and it still proceeds from socialist theories of
social hygiene and from some Vietnamese popular beliefs.
Moreover, this paper brings out processes of circulation and borrowing of
Soviet and Chinese penal norms in Vietnam since 1945.
Charles Waugh <cwaugh@cc.usu.edu>
date Feb 14, 2007 2:20 PM
subject Re: [Vsg] New Article: Penal Reform in Viet Nam 1985-2005
Thanks for sending this to the list.
Not having studied Vietnamese law, I hadn't really thought of this issue of the "rule by
morality," but it raises an interesting point: the article title's inclusion of "faux-
semblance" is clearly a negative term, suggesting that the "rule of law" is preferable, in
fact something that Vietnam must "reform" themselves to achieve. And yet, the present issue
of the agent orange victims' case against the US chemical companies is a clear one where "the rule of law" is, in my opinion, inferior. Present day "rule of law" systems such as our own
require irrefutable causal proof that can demonstrate Person A was sprayed by Plane B flown
by Government C carrying Chemical D manufactured by Company E, impacting Person A's exact Biological System F in Manner G. This is an impossible task, for many reasons, but
especially because of the large number of people exposed, the vast diversity of their living
and eating habits creating innumerable contingencies, and because of dioxin's teratogenic
wildcard effects on human beings. It may be decades before we fully understand the way
dioxin affects humans, if ever, which means that in this instance, justice based on the "rule
of law" can be indefinitely postponed. And yet, under a "rule of morality" system, a much
more common sense approach may be taken: you've dumped millions of gallons of defoliant
containing unnecessarily high levels of dioxin on our country, we know dioxin is a poison,
therefore you are morally obligated to do something to help the people who are suffering.
Seeing it this way might allow for a scenario in which individuals themselves were not
compensated directly, but a fund could be set up to be administered by VAVA or the Vietnamese government, allowing them to decide who deserved compensation and how much. Understanding that most Vietnamese see the lawsuit as an issue of morality explains why so many were surprised by the 2005 dismissal of the case, but anyone who follows environmental justice legal proceedings in the US knows that it's never about morality, it's simply whether enough scientific study has been done and whether it can be sufficiently and convincingly marshalled in court.
I'm not suggesting that in all cases a legal system based on the "rule of morality" is
superior, just offering the idea that the "rule of law" is not always what it's cracked up to
be.
"tabennet@email.unc.edu" <tabennet@email.unc.edu>
date Feb 15, 2007 7:18 PM
subject Re: [Vsg] New Article: Penal Reform in Viet Nam 1985-2005
I couldn't agree more with Charles Waugh's eloquent message about the
rule of morality providing logical and necessary guidance for US
assistance to Vietnam in light of Agent Orange and other war-related
damage and suffering. Morality as a guiding principle is not a
rejection of either law or science (when both may be inadequate), but a
more direct and immediate response to obvious need and an assumption of
responsibility. Thank you!
Trude Bennett
Stephen Denney <sdenney@ocf.berkeley.edu>
date Feb 15, 2007 9:23 PM
subject Re: [Vsg] New Article: Penal Reform in Viet Nam 1985-2005
I think the issues here are very different. On the one hand, you have
powerful corporation in the U.S. using the law to the best of their
ability to avoid paying compensation to Agent Orange victims.
On the other hand, in Vietnam, the issue as discussed in the article by
Ciline Marangi is how the law is used as a political weapon against
individuals, particularly dissidents, who lack any real power to challenge
their prosecution, as well as any clear rights under the legal system. I
would be interested in a discussion of the points raised by Ciline
Marangi, and to what extent, if any, there has been change toward
establishing clear legal rights for the defendant.
- Steve Denney
date Feb 16, 2007 12:28 PM
subject Re: [Vsg] New Article: Penal Reform in Viet Nam 1985-2005
I thank Stephen Denney for his e-mail.
I would like to answer to Charles Waugh's commentary and bring some clarifications about the
terms "anomy" and "rule by morality" I used in my abstract.
It was not until 1985 that the first criminal code was adopted in socialist Vietnam. In 1976,
a code was written up by Truong Nhu Tang, the FNL leader and Minister of Justice of the
Provisional governement for the South, and adopted under the auspice of Pham Van Dong, but it went unheeded (see Truong Nhu Tang's Vietcong Memoir). From the late 1940's to 1985, the
Vietnamese judges had orders to give verdicts following closely the Party's line and marxist
-leninist ideology and to rely on "revolutionary ethics" (đạo đức cách mạng). This is
what I called "the rule by morality".
In 1967, the President Trường Chinh enacted a prescription which left any sentence at the
sole discretion of judges. According to , the Director of the Hanoi Law and State Institute in the late 1990s, until 1985 « the courts and other organs in charge of administering the law were entirely free to decide the sentence and other coercive measures. The 1967 prescription also gave the force of law to two principles, the principle of retroactivity (nguyên tắc hiệu lực hồi tố) and the principle of similarity (nguyên tắc tương tự), according to which a judge could repress a "not yet specified" crime if the crimepresented some analogies with "already specified" infractions. This prescrition sanctionned a system founded upon anomy.
I would like to inform you can command the 33 issue of "Critique Internationale" :
http://www.ceri-sciencespo.com/publica/critique/criti.htm
or buy the article:
http://www.cairn.info/page_achat_art_ident.php?ID_REVUE=CRII%
20&ID_NUMPUBLIE=CRII_033&ID_ARTICLE=CRII_033_0079
Besides, I don't think that the word "faux semblance" exists in English. As regards the
French word "faux-semblant", it means no more than "pretence", what I mentionned into
brackets. If you don't speak French, what is perfectly fine, could you please give some
credit to those who handle both languages, instead of interpreting your own mistakes.
Having said that, I fully understand and share your concern about the Agent Orange victims. A
French association, named l'Association d'Amitie Franco-Vietnamienne, organized a conference on this issue a year and a half ago. Subsequently, they launched a campaign to compel the United States to pay compensation. You could maybe contact them and unify your efforts. See the link : http://www.aafv.org/index1.htm
Finally, may I also add that the United States was not the sole state to use chemicals
against civilians in that region. In late 1977, the Pathet Lao and the Vietnamese army
launched a large-scale offensive against the Hmong in the North-east of Vientiane, causing
the death of 7000 Hmong people. During the offensive, they sprayed repeatedly toxic chemicals
(agent moutarde) on Hmong villages and nearby forests.
Sincerely,
Celine Marange
PhD candidate, Sciences Po Paris
Fox International Fellow, Yale University
"frank.proschan@yahoo.com" <frank.proschan@yahoo.com>
date Feb 16, 2007 1:29 PM
subject Re: [Vsg] New Article: Penal Reform in Viet Nam 1985-2005
There is no credible evidence of the supposed use of CBW (chemical-biological
warfare/weapons) against Hmong in Laos after 1975. This was an accusation invented from whole cloth by the Reagan administration to justify American resumption of CBW research. The "best" evidence offered of this so-called "yellow rain" has been convincingly refuted, as the
pollen-laden excrement of swarming bees, by Harvard's Michael Meselson, an expert on CBW and someone not at all reluctant to point fingers were finger-pointing called for. Notably, after
the Soviet collapse, when Soviet archives were opened and previously uncomfirmed incidents of CBW mishaps and industrial accidents within the Soviet empire were revealed, no evidence came to light that would give the slightest credence to the invented charges of Reagan and
Weinberger. Like the present administration's WMDs in Saddam-era Iraq, a pure fabrication of
the U.S. to justify its own military agenda.
Frank Proschan
Charles Waugh <cwaugh@cc.usu.edu>
date Feb 16, 2007 1:48 PM
subject Re: [Vsg] New Article: Penal Reform in Viet Nam 1985-2005
From the OED:
pretence, pretense, n.:
1. a. An assertion of a right or title; the putting forth of a claim; a claim. Now rare.
2. The putting forth of a claim to merit, dignity, or personal worth; pretension, profession;
ostentation, parade, display.
3. a. An expressed aim, intention, purpose, or design; an intending or purposing; the
object aimed at, the end purposed. Obs.
b. esp. A false, feigned, or hypocritical profession or pretension.
4. A profession of purpose; esp. a false profession, a merely feigned aim or object, a
pretext, a cloak.
5. a. An assertion, allegation, or statement as to fact; now usually with implication that it
is false or misleading.
b. The action of pretending, as in children's play; make-believe, fiction.
6. The assertion or alleging of a ground, cause, or reason for any action; an alleged ground
or reason, a plea; now usually, a trivial, groundless, or fallacious plea or reason, a
pretext.
7. attrib. (in sense 5), passing into adj., denoting something that is imitative or ‘phoney’.
As you can see, the word "pretense," like the English translation of "faux-semblance"--false
appearance--has in common English usage mostly a negative connotation. This negative
connotation is what most people imagine when they read the word "pretense." To quote Celine:
"could you please give some credit to those who handle both languages, instead of
interpreting your own mistakes."
My real point here is that while many people like to use the discourse of development
currently in vogue, to say for example that countries like Vietnam must "reform" themselves
to adopt the "rule of law," few really interrogate what those phrases mean and perhaps more
importantly why they seem always to be pointed toward the developing world instead of
countries like the United States and France. Certainly the rights of dissidents should be
addressed, but again, what country is free from its leaders making incarceration political?
The US is holding hundreds of people without charge in prisons from Guantanamo to Afghanistan to Iraq and who knows where else in their CIA-proxies. If it is simply a matter of
investigating politically-motivated incarceration, why not go after the most egregious
oppressors first? Why pick on Vietnam?
Stephen Denney <sdenney@ocf.berkeley.edu>
date Feb 16, 2007 2:23 PM
subject Re: [Vsg] New Article: Penal Reform in Viet Nam 1985-2005
On the point of retroactive application of the law, I recall reading
correspondence between Amnesty International and the Socialist Republic of
Vietnam, which AI published in a 1981 report. One point raised was the
claim that under the DRV 1967 Law on Counter-Revolutionary Crimes, all
those who served in the South Vietnam government or army in leadership
positions were guilty of treason, and therefore could be punished by the
death penalty under law. It was argued by SRV officials that the
re-education camps were a humane alternative to such punishment. AI
objected that this would be retroactive application of the law, since the
re-education camp prisoners were not living in the north at the time
these laws were enacted.
- Steve Denney
Stephen Denney <sdenney@ocf.berkeley.edu>
date Feb 16, 2007 2:30 PM
subject Re: [Vsg] New Article: Penal Reform in Viet Nam 1985-2005
"If it is simply a matter of investigating politically-motivated
incarceration, why not go after the most egregious oppressors first? Why
pick on Vietnam?"
Perhaps because this is an academic forum on Vietnam, and its legal system
is a suitable topic for discussion here?
- Steve Denney
- Show quoted text -
On Fri, 16 Feb 2007, Charles Waugh wrote:
> From the OED:
> pretence, pretense, n.:
> 1. a. An assertion of a right or title; the putting forth of a claim; a
> claim. Now rare.
> 2. The putting forth of a claim to merit, dignity, or personal worth;
> pretension, profession; ostentation, parade, display.
> 3. a. An expressed aim, intention, purpose, or design; an intending or
> purposing; the object aimed at, the end purposed. Obs.
> b. esp. A false, feigned, or hypocritical profession or pretension.
> 4. A profession of purpose; esp. a false profession, a merely feigned aim
> or object, a pretext, a cloak.
> 5. a. An assertion, allegation, or statement as to fact; now usually with
> implication that it is false or misleading.
> b. The action of pretending, as in children's play; make-believe,
> fiction.
> 6. The assertion or alleging of a ground, cause, or reason for any
> action; an alleged ground or reason, a plea; now usually, a trivial,
> groundless, or fallacious plea or reason, a pretext.
> 7. attrib. (in sense 5), passing into adj., denoting something that is
> imitative or `phoney'.
>
> As you can see, the word "pretense," like the English translation of
> "faux-semblance"--false appearance--has in common English usage mostly a
> negative connotation. This negative connotation is what most people
> imagine when they read the word "pretense." To quote Celine: "could you
> please give some credit to those who handle both languages, instead of
> interpreting your own mistakes."
>
> My real point here is that while many people like to use the discourse of
> development currently in vogue, to say for example that countries like
> Vietnam must "reform" themselves to adopt the "rule of law," few really
> interrogate what those phrases mean and perhaps more importantly why they
> seem always to be pointed toward the developing world instead of
> countries like the United States and France. Certainly the rights of
> dissidents should be addressed, but again, what country is free from its
> leaders making incarceration political? The US is holding hundreds of
> people without charge in prisons from Guantanamo to Afghanistan to Iraq
> and who knows where else in their CIA-proxies. If it is simply a matter
> of investigating politically-motivated incarceration, why not go after
> the most egregious oppressors first? Why pick on Vietnam?
>
> Charles Waugh
> Assistant Professor
> Fiction Editor, Isotope
> Department of English
> Utah State University
>
>
>
Charles Waugh <cwaugh@cc.usu.edu>
date Feb 16, 2007 3:16 PM
subject Re: [Vsg] New Article: Penal Reform in Viet Nam 1985-2005
But how we discuss it isn't?
Charles
Thomas Jandl <thjandl@yahoo.com>
date Feb 16, 2007 3:32 PM
subject Re: [Vsg] New Article: Penal Reform in Viet Nam 1985-2005
As a neo-American, I agree that my adopted country has all kinds of cleaning up of its own
human rights record to do. And we (my newly fellow Americans and I) get a lot of flak for our
problems. But is Charles Waugh suggesting that one can only discuss Vietnam once all problems
in the United States or Europe have been cleaned up? That would be a standard that I would
not want to subscribe to. Nor would the victims of violations outside the United States. I am
convinced they see their plight as equally pressing as the issues in Guantanamo.
I reserve the RIGHT to discuss any problem I see, without having to account for those that
someone else may see as more pressing first. Moreover, I feel as innocent about Guantanamo as
about human rights problems in Vietnam -- I haven't caused either. So I feel I can discuss
both equally and at the same time.
Stephen Denney <sdenney@ocf.berkeley.edu>
date Feb 16, 2007 4:14 PM
subject Re: [Vsg] New Article: Penal Reform in Viet Nam 1985-2005
I would not agree that the charges of chemical weapon use againt Hmong in
Laos were invented by the Reagan administration, since there were news
reports in the late 1970s on this subject. Here are some articles written
at that time:
_Los Angeles Times_, April 7, 1978, "Tribal People Flee Laotian
Attack, Cross Into Thailand," by George MacArthur, pages 14-15
_San Francisco Chronicle_, Associated Press, June 23, 1978, "A
Massacre of Meos Reported," page 20
_Agence France Presse_, September 26, 1978, "Poison Gas Being
Used Against Meo Rebels" by Joel Henry
_The Times_, London, October 6, 1978, "Meos are Being Hounded Out
of their Mountain Homes," by Neil Kelly
_The Washington Post_, September 17, 1978, "The Allies We
Abandoned in Laos are Still Fighting and Dying," by Ogden
Williams
_Asiaweek_, December 1, 1978, "Sowing Death on Phou Bia", pages
22-23
_San Francisco Chronicle_, United Press, January 8, 1979, "Report
of Poison Gas in Laos"
_Chicago Tribune_, April 8, 1979, "Our Forgotten Allies in Laos
being Massacred," by Ronald Yates, page 6
_Los Angeles Times_, May 16, 1979, "Laotian Refugees Languish in
Camp," by Peter Arnett
_Chicago Tribune_, May 27, 1979, "Forgotten Guerrilla `Had Enough
of War'" by Ronald Yates
_Far Eastern Economic Review_, August 24, 1979, "Tracing a Gas
Leak," by John McBeth, page 12
_Newsweek_, August 27, 1979, "The End of the Hmong," by James
Pringle, pages 34-35
_The Economist_, September 1, 1979, "After the Boat People, the
Hill People"
_The Globe and Mail_, September 1, 1979, article by Victoria
Butler
- Steve Denney
Charles Waugh <cwaugh@cc.usu.edu>
date Feb 16, 2007 4:15 PM
subject Re: [Vsg] New Article: Penal Reform in Viet Nam 1985-2005
Not at all.
I also absolutely reserve the right to discuss the problems I see. What I am saying is that
how we discuss these issues is just as important as the discussion itself, and the discourse
of development is clearly a problem.
To try to understand the cultural derivation of Vietnam’s legal system, and to analyze what
happens when that system seems to fail, or when international agencies attempt to convert
that system to one derived from their own cultures is one thing. But to judge that process
of conversion as being undermined by the Vietnamese somehow being devious is something else
entirely; it is in fact part of the conversion itself, and it is in fact what some people
call neo-colonialism.
To recognize there are political prisoners in Vietnam is one thing. To say that they have no
rights because of the "rule of morality," or that the only way for them to gain rights of
representation is by adopting an externally derived "rule of law" is another. Isn't it
possible that under a "rule of morality" system, that the Vietnamese government has a moral
obligation to allow these prisoners to defend themselves? Why invoke this "rule of law"
rhetoric?
It seems to me that it is invoked because it seats the locus of power in the West, with the
development wonks who like to use that phrase. To me, it says the "rule of law" is the
system that must be lived up to because that's the system we have here, and we are developed
and they are not. Well, to me, it is clear that what we mean when we say "developed" refers
solely to our wealth and industrial capability, not our ability to make moral, socially
responsible decisions.
Charles
Adam <adam@aduki.com.au>
date Feb 16, 2007 4:33 PM
subject RE: [Vsg] New Article: Penal Reform in Viet Nam 1985-2005
I sense a raising of temperature, which is not necessarily a bad thing. In fact I think it is
probably a good thing. The question is, what happens next.
There is a wrinkle on all this, which can be amusing. Amongst developers, Joe Stiglitz has
voice.
He has been known to argue that you can only get good development with good institutions, in
which he of course includes, as an American of a certain type, an "independent judiciary"
(and what that means in the US is of course debatable, but the gist is not too unclear).
In the UK, of course, the peak of the judiciary, until very recently, was a politician, or
politicians if you refer to the house of Lords. Clearly, then, the UK could never develop. Ha
ha. So, from his great height, all he is really saying is that what he thinks should be
taught to the young is what he thinks is right, good and proper. Good on him, but the world
is a bigger place, and so his voice simply does not matter that much. Who cares?
if you find yourself outside the discussions the subjectivity of all sides can become very
clear. One person, typically American, asserts that they have the right to speak, another,
not American, notes that this does not mean they have the right to be heard seriously. One
person, perhaps a Vietnamese Communist, asserts that they were being moral by not simply
shooting out of hand everybody they did not like in the South, but sent them off to Cai tao
so they could change; another person, perhaps a south Vietnamese Catholic, asserts that this
was simply an attempt at revenge and had nothing to do with morality.
What is important in VSG, which is the only VSG I know of, is that we accept all this,
discuss, and keep on trying. These big issues matter and need to be discussed otherwise the
work will dissolve into a series of micro studies where the big questions are answered by
default. What each of us them makes of all this, since in this world there are no windows
into souls, will never be entirely clear. As a Vietnamese economist once put in an article,
'Understanding is limited, but misunderstanding is limitless'. I have always wonder where he
got this from. Anybody know?
Adam
"Adam @ UoM" <fforde@unimelb.edu.au>
date Feb 16, 2007 6:59 PM
subject RE: [Vsg] New Article: Penal Reform in Viet Nam 1985-2005
Re "'Understanding is limited, but misunderstanding is limitless'"
It was in a published article by Prof Hoang Kim Giao, of Hanoi University, some time in the
1980s, when of course rigid Communist dogma blah blah blah.
Adam
Bill Hayton <bill.hayton@bbc.co.uk>
date Feb 17, 2007 6:29 AM
subject RE: [Vsg] New Article: Penal Reform in Viet Nam 1985-2005
Perhaps it might be useful to ground this discussion with a recent example. This was recently
circulated by the Hanoi-based dissident lawyer Nguyen Van Dai...
More seriously, the communist government of Vietnam is now resorting to mental terrorism,
which is the same tactics that it had employed during the 50's of the 20th century. That is,
they are applying People's Court techniques of denouncing and accusing (which was made
notorious by the Land Reform campaign of 1953-56 in North Vietnam). On February 5, 2007 they
carried on this type of kangoroo court at the neighborhood of engineer Bach Ngoc Duong.
On the evening of February 8, 2007, the communist government has mobilized about 200 people,
between the ages of 60 to 80 at the People Committee of Ward Bach Khoa to carry on this type
of People Court tactics. They've called it The Conference of the People and proceeded with
reading aloud Mr. Dai's biography, afterwards falsely accused attorney Dai as a member of The
XXI Democracy Party, calumniated him as a traitor, who has sold out his country. During the
whole two and a half hour of this denouncing and accusing ordeal, they did not allow attorney
Dai to utter a single word (in his defense). Finally, they concluded that attorney Nguyen van
Dai is guilty on two counts, violating Article 88 and 258 of the Criminal Code. They demanded
to disbar and revoke his law license, to close down the Thien-An Law Office, and to pursue
criminal actions against attorney Nguyen van Dai. Using the security force and the
extremist's threat they pressured him into signing the affidavit, but lawyer Nguyen van Dai
declared: "You all can kill me, but I will never sign it". In the end they conceded.
Would it be better to live under a legal system where 200 people can convict someone by
shouting at them or one in which a court follows rules of procedure which, although they give
advantages to the rich and powerful, can be referred to, challenged, upheld and appealed?
Bill Hayton, Hanoi
"Adam @ UoM" <fforde@unimelb.edu.au>
date Feb 17, 2007 6:06 PM
subject RE: [Vsg] New Article: Penal Reform in Viet Nam 1985-2005
Thanks for this
"Would it be better to live under a legal system where 200 people can convict someone by
shouting at them or one in which a court follows rules of procedure which, although they give
advantages to the rich and powerful, can be referred to, challenged, upheld and appealed?"
Sure, one can agree; it sounds good - but of course it should, though of course things go
wrong.
The last public lynching in the UK was in the 1950s, Aboriginals only got full civil rights
in Australia in the 1960s, and, as for discussing race relations in the US, and just how many
people of colour (and not a few white civil rights activists, and not a few of them Jewish)
got killed by extra-judicial means in the US, with no << actual >> recourse despite formal
constitutional provision, for reference, challenge and so on, well, who wants to go there?
Not to mention current events and just why the Italians are trying various US citizens
employed by the CIA for committing crimes on Italian territory, called intriguingly
'rendition'.
I really do not see the value to arguing in terms of abstractions. What is that phrase from
Eastern Europe? 'We were promised justice and we got the Rule of Law' ???
But I certainly do have the strong impression that the VCP remains fundamentally Leninist in
its techniques of rule, and I have published about this. What you describe below is surely a
Standard Operating Procedure: taught, proceduralised, reported on and given meaning in <<
standardised >> ways. Eastern Europeans know this when they see it. And so there is an
empirics associated with it. Which makes the story below meaningful for me. Not a surprise at
all.
In the same way, first withholding and then granting civil rights to Aboriginals in Australia
reflected a change (of some sort) to SOPs here. Not a surprise at all.
Regards
Adam
Christophe Robert <christophe.robert@yale.edu>
date Feb 18, 2007 12:26 AM
subject RE: [Vsg] New Article: Penal Reform in Viet Nam 1985-2005
to fellow VSG list members,
On the eve of the new year, and in the wake of messages of happiness
and success for said "nam moi," first, I should say I am quite disturbed by the fact that
these conversations seem to be taking place about Celine's article in the
absence of the most basic courtesy, which would be to read her readily
accessible article. (She'd be happy to forward you a copy, for instance.)
Second, and at the risk of stating the obvious, what strikes me about her
article is how "right on" it sounds, ethnographically speaking. It is clear
that her questions and her research are informed by her own experiences
in Viet Nam. It seems to me that what Celine is trying to do is to provide a
genealogy of what is happening in the Vietnamese legal system today.
But her use of the (Durkheimian) notion of "anomie" is a reminder that
something bigger is at stake here.
This article provides a critical intervention (critical, also, as in,
crucial) to help us understand better what many of us are involved and
interested in, which is to understand where Vietnamese society is headed today, and, if we
mischievously adapt Lenin's question, "what is to be done?"... This is
certainly a question that most Vietnamese leaders are asking themselves on a
daily basis as they try to reconcile the pragmatic demands of economic growth
with those (related ones) of maintaining "social order". And, clearly, many
Vietnamese families, especially those who are NOT reaping the benefits of
economic growth and who find themselves on the nasty receiving end of the
Vietnamese legal system, are asking themselves the same question. Indeed what
is to be done if your son at the age of 16 suddenly becomes a heroin
addict and the only model you have to explain his behavior is a moralizing one that now
brands him as associated with the murky realm of "social evils" (cac te nan xa
hoi)? This is NOT a satisfactory explanation, as far as parents will
tell you, if you ask them. They are left with an absolute explanatory void --
though they may be able to put some sort of external and stigmatizing label on their son's
"problems" or condition. One of the crucial questions is to ask where this
label comes from and what it does.
If I may shift the debate or discussion about penal reform away from
the obvious question (for "us" outsiders) of dissidence and back to the ground that most
Vietnamese -- in their daily lives -- would recognize as central, i.e. the
question of "cac te nan xa hoi," we would recognize something right away. Which is that there
is indeed a very strange relationship between "rule by morality" and "rule by law." To
shamelessly refer to my own research, I should say that one thing that always struck me in
Sai Gon was the fact that "ordinary people" (the appeal to the "binh thuong" seems to be a
powerful trope by/of the re-mergent bourgeoisie) constantly used the register of morality,
and/or lack thereof, to refer to both the activities of drug dealers, junkies,
prostitutes... and of corrupt cadres. What strikes me in this language use is
the fact that this can be understood in different ways, perhaps as some
type of diffuse or implicit "Confucian" register -- or a customary appeal to notions
held as "traditional" -- but just as well you could see this as a strange
(again) internalization and use of a Communist discourse on deviance. In this
communist discourse, even petty criminals are understood as internal enemies
who undermine the foundations of society and its proper functioning.
I think Celine's article is extremely illuminating at this level -- especially
since it also does the great service of delving into Soviet sources and of
pointing to the link to Chinese Communist penal texts as well.
Finally, one (sociological) criticism. I think Celine's use of the
Durkheimian term "anomie" is unfortunate here. However we might want to disagree with the
rule by fiat of the CPV until recent reforms, the legal situation in Viet Nam
was not one of "anomie," but one of in which, as Celine herself demonstrates
eloquently, the legal process was internally consistent, by appealing to a
revolutionary morality. These are norms. The problem of course, to provide a
more fine-grained sociological analysis, was that these rules were applied
without the possibility for appeal or for discussion. My point is a technical
one, not a philosophical one, but I think that it is important not to
make that mistake of thinking that socialist penal rule constitutes anomie.
Anthropologically, we ought to say that it constituted a form of rule
that seems alien or strange to us, but the functionings of which we can
clearly take apart and understand -- from within that system. Call me a relativist.
(Incidentally, the work of Claude Lefort in "The Political Forms of Modern
Society" probably provides the sharpest and most salient introduction to these
questions. I draw from it in my comments here.)
I'll stop being the pedant here... (I'll try.)
I wanted to say a few things on behalf of Celine's very thoughtful and helpful
article for those of us who try to understand marginal populations in Viet Nam
today, such as those called "social evils" (te nan xa hoi). This is not a new
category: the Vietnamese term was clearly borrowed from the French term
"fleaux sociaux" and it appears as far back as the 1920s in modern debates
about social change. It figures as well in "phong su" texts of the 1930s -- but it was
re-energized and assumed new prominence in the 1990s in debates about the
opening up of Viet Nam to foreign investment and its social consequences and
costs. Vietnamese friends involved in social work often remarked to me that
the problem is that this stigmatizing label, which was written into law (and
against which MOLISA created an official agency in the mid 1990s) originally
referred to social problems (such as drug use, prostitution), but that it came
in time to refer to PEOPLE. These people -- drugs users, prostitutes,
gamblers, etc. -- themselves became THE "social evils," those that
"society" or "the People" should fight against, should reject, should isolate. To which of
course the newly minted middle-classes would be all too happy to acquiesce (in
a truly cross-culturally valid pattern).
Celine's article provides ways to understand this process better from a legal
perspective, by pointing the seepage between law and politics. I do
think that Celine soft-pedals a bit the question to which this seepage is
inevitable -- and again, from an anthropological this sounds quite obvious, even in Western
societies. See Geertz's trenchant analysis of this in his "Local Knowledge:
Fact and Law in Comparative Perspective" (1983).
This has nothing to do with "picking on Viet Nam," but rather with trying to
understand better -- in the specific case of the so-called "social
evils" which I outline briefly here -- the relations between law and society in the context
of rapidly shifting socioeconomic situations and legal norms.
Chuc mung nam moi, indeed. But I am still more than a little worried about
those stigmatized groups who are on the receiving end of this new
post-revolutionary morality.
Best,
Christophe Robert