The Relationship Between Law and Society: Theory and Practice

Kim Them Do

General Theory

Law as a Social Element

Culture broadly encompasses the shared existence of individuals within a society, including language, customs, religion, and laws. As such, law is an integral component of cultural life and plays a significant role in shaping social development.

A deeper examination of the formation and evolution of law reveals that it is influenced by a multitude of factors—political, economic, geographical, climatic, demographic, religious, and moral. Charles de Secondat Montesquieu (1689–1755), the French jurist and historian, explored these influences extensively in his seminal work The Spirit of the Laws (De l’esprit des lois). In the preface, he emphasized how these variables contribute to the diversity of laws and customs across societies. He also analyzed the principle of the separation of powers—Executive, Legislative, and Judiciary—as foundational to constitutional democracy. Montesquieu attributed this doctrine to the English Constitution, although this interpretation is not entirely accurate.

Friedrich Carl von Savigny (1779–1861), founder of the historical school of jurisprudence, stressed the intrinsic connection between law and culture. He argued that law is shaped by the collective consciousness of the people—often referred to as the „national spirit“ or prevailing societal mood. This perspective remains influential among contemporary scholars.

Modern analysts often distinguish between legal policy and legal sociology. They assess whether proposed legislation adequately reflects political, economic, and psychological realities to align with public aspirations. However, these factors are not always given equal or timely consideration during the legislative process.

In efforts to democratize post-communist or developing nations, policymakers frequently attempt to emulate Western democratic legal frameworks. While they may assume that legislative techniques are easily transferable, they often encounter significant obstacles due to entrenched cultural traditions and social practices.

Legislative Process

In developed nations, legislation typically follows a clear policy agenda, with proposed outcomes communicated to the public to gain support. As early as the 19th century, legal theorist Rudolf von Jhering (1818–1892) asserted that a bill must justify its objectives and feasibility before being considered.

Given the constant evolution of society, there is a pressing need to update legislative and regulatory systems. New laws must be introduced swiftly to address emerging challenges. Bills undergo a structured process: proposal, drafting, consultation, finalization, and enactment. Since citizens are accustomed to existing laws, any change can significantly impact their lives. Often, they question whether new laws are truly necessary or if they might cause unintended harm. Even legal professionals may struggle to keep pace with frequent updates.

Legislative initiatives are often driven by experts affiliated with political parties or interest groups. During election campaigns, both ruling and opposition parties compete to present legal policies that promise to address urgent public concerns – such as expanding social benefits or reducing taxes— – o attract voters. The legislative process is frequently contentious, with divergent views from political factions, interest groups, media, and public opinion. Budgetary constraints also pose major challenges to implementation.

Most bills are drafted by legal experts within specialized ministries of the ruling party. This preparatory phase can be lengthy, especially when addressing issues of immediate public interest. Stakeholders, including interest groups and academic experts, are often invited to provide testimony. In many cases, strong opposition from the media, professional associations, or the public forces drafts to be abandoned.

Once enacted, laws are subject to interpretation by scholars and judicial decisions, which can generate new issues and influence public perception. Over time, laws are evaluated through statistical analysis to determine whether revisions are necessary to better suit societal conditions.

Navigating Society Through Law Enforcement

The collapse of institutions in the Soviet Union and Eastern Europe during the 20th century marked a profound social transformation. The attempt to construct a socialist utopia – characterized by classlessness, absolute justice, and total freedom – ultimately proved illusory.

The failure of socialism can be attributed to several factors: ineffective centralized governance, disregard for private property rights, and authoritarian regimes that violated the rule of law. However, building a new system of social values remains a formidable challenge. Beyond establishing mechanisms for a market economy and parliamentary democracy, the question arises: should reform also embrace the principles of a rule-of-law state?

The mutual influence between law and modern society is evident, particularly when laws are effectively applied and enforced with public understanding and support. Legal reform aimed at preserving social order and safeguarding individual liberty holds strong appeal, as people aspire to a better future. This process – often referred to as social navigation – is inherently complex and frequently controversial.

Several key challenges arise:

1. Freedom vs. Uniformity: In contrast to authoritarian regimes, democratic societies cannot impose a singular vision of happiness, especially when it entails curtailing individual freedoms.
2. Government Intervention: Legal changes often require government involvement in personal matters such as rights, opportunities, and property -which can provoke resistance from affected individuals, who may present compelling counterarguments.
3. Practicality of Goals: The feasibility of legislative goals is often debated, with critics questioning whether proposed laws can deliver tangible results.

Today, the ideal of harmonious coexistence is widely celebrated, especially when governments pursue noble objectives like national security, public order, personal freedom, and social welfare. Yet, the effectiveness of law depends on two essential elements: the intent of the legislature and the cooperative spirit of the populace.

Modern societal dynamics are shaped by accumulated experience and adaptive efforts. Legislators must balance the preservation of existing legal systems and individual freedoms with the need for progress. Legal reforms should avoid radicalism, as excessive disruption can undermine feasibility and democratic principles. Criminal law plays a pivotal role in guiding society, with its impact assessed through three key dimensions: substantive content, policy orientation, and societal influence.

Character

Criminal law embodies the ideal of natural justice and serves as the legal foundation for safeguarding personal safety and maintaining social order. Crimes such as murder, robbery, fraud, and extortion undermine individual security, erode freedom, and disrupt societal functioning. The principle that those who violate the law must be punished serves a dual purpose: to penalize offenders and to deter future crimes.

In this context, the protective aims of criminal law can be categorized into two distinct domains: individual and communal. For individuals, the law seeks to protect physical integrity, personal honor, and property. For the community, it safeguards public safety – such as traffic regulations, environmental standards, and the proper functioning of law enforcement agencies. These dual objectives underscore the essential and universal value of criminal law in society.

Policy

In response to evolving societal norms, legal policymakers increasingly aim to reform and modernize the criminal justice system. Amendments typically focus on redefining the elements of criminal offenses, either intensifying or relaxing penalties depending on the context.

For example, most Western penal codes have abolished criminal penalties for homosexuality and adultery, reflecting shifts in cultural and ethical standards. Conversely, in the wake of terrorist attacks by radical groups, new legal provisions have emerged to combat international terrorism, financial fraud, and transnational money laundering. Similarly, domestic violence – particularly against women – has prompted the introduction of new punitive frameworks. These legislative adaptations reflect attempts to align the law with contemporary challenges, though they do not always resolve underlying social tensions effectively.

Influence

The societal impact of criminal law has long been a subject of philosophical inquiry. Ancient thinkers generally agreed that punishment serves to raise public awareness, deter future offenses, and restore the moral balance disrupted by crime. Enlightenment philosophers, notably Immanuel Kant (1724–1804) and Georg Wilhelm Friedrich Hegel (1770–1831), emphasized the central role of justice in this process.

Kant famously argued that justice must be upheld regardless of changing circumstances. He illustrated this with a hypothetical scenario: if the inhabitants of an island were to dissolve their society and emigrate, the last remaining death row inmate must still be executed. This act, he claimed, affirms the enduring value of justice and ensures that the moral debt incurred by the crime is not transferred to the collective.

Hegel approached punishment through a dialectical framework—thesis, antithesis, and synthesis. He viewed criminal law as a recognition of mutual responsibility and freedom. When an individual commits a crime, they renounce their recognition of others‘ freedom and disrupt the social order. Punishment, then, is the necessary counterforce that restores balance and legitimacy. Hegel also argued that punishment acknowledges the offender’s rationality, especially in cases like capital punishment, where the law symbolically affirms the convict’s capacity for reason.

In modern discourse, the restoration of justice is increasingly viewed through a broader lens. It is no longer sufficient to focus solely on depriving the offender of freedom in response to violating another’s rights. The value of criminal law must be elevated to encompass broader societal goals.

Historically, Western criminal law has operated on the assumption that individuals are rational agents capable of weighing the consequences of their actions. Thus, punishment serves both as retribution and as a deterrent to others. Over time, this deterrent effect is expected to reduce crime rates.

Contemporary analysis has expanded this view, exploring both the positive and negative dimensions of deterrence. The effectiveness of punishment depends on the nature of the offense. For minor infractions, lighter penalties may suffice to raise awareness and correct behavior. In contrast, serious crimes necessitate stronger measures to protect society – often requiring life imprisonment or similarly severe sanctions.

Another important aspect of modern criminal justice is the role of rehabilitative measures. Coercive education programs aim to restore the dignity of offenders and facilitate their reintegration into society. While current legal theory and case law advocate for a unified approach to these measures, in practice they often serve as situational remedies rather than comprehensive solutions.

Ultimately, the restoration of justice through deterrence, punishment, and rehabilitation remains a complex and evolving philosophy. It seeks to balance societal protection with human dignity, but it rarely offers a definitive resolution. This tension is particularly evident in the current state of Vietnam’s Criminal Code, where theoretical ideals and practical realities continue to diverge.

Facts About Vietnam’s Criminal Code

Content

Vietnam’s current Criminal Code reflects several positive developments, particularly its commitment to protecting national security, public order, life, health, honor, human dignity, property, and the legitimate rights and interests of citizens and organizations. The Code emphasizes not only punishment but also education, rehabilitation, and crime prevention. In practice, alongside severe penalties for serious offenses, the law also provides leniency for individuals who demonstrate remorse.

Overall, the Code aligns with international treaties, judicial reform efforts, and global integration trends. Domestically, it has contributed to maintaining social stability and fostering a secure living environment. However, its enforcement has revealed significant limitations—most notably, the criminalization of political freedoms, which remains a contentious issue.

Criminalization of Political Freedom

Political freedom is a fundamental human right, enshrined in both the Constitution of Vietnam and international instruments such as the International Covenant on Civil and Political Rights (ICCPR). Nevertheless, vague and broadly worded provisions in the Penal Code have led to the suppression of these rights, shrinking democratic space and silencing dissent.

Three articles frequently cited by domestic and international observers include:

• Article 117: Addresses “propaganda against the State” but fails to define what constitutes “against,” allowing for arbitrary interpretation and prosecution of individuals with dissenting political views.
• Article 331: Prohibits “abuse of democratic freedoms,” yet lacks a clear distinction between abuse and the legitimate exercise of rights, often serving as a tool to suppress criticism.
• Article 318: Criminalizes “disturbing public order,” but does not clearly differentiate between peaceful protest and criminal behavior, leading to the prosecution of nonviolent demonstrators.

Root Causes

The criminalization of political freedom reflects deeper systemic issues. Under the comprehensive leadership of the Communist Party of Vietnam, public institutions—including the judiciary—lack independence. Media outlets and social networks are subject to strict censorship, and individuals who voice criticism are frequently threatened or prosecuted, undermining freedom of expression.

Civil society organizations, independent activists, and reform advocates are often labeled as “hostile forces.” Proposals for change are easily dismissed as “incitement,” “defamation of leadership,” or “disruption of public order,” weakening the role of public oversight and constructive criticism.

When the law becomes a political instrument, public trust in the justice system erodes. Restrictions on freedom of expression, assembly, and political participation stifle social innovation and delay democratization—developments perceived by the Party as threats to political stability.

Proposed Solutions

To address these challenges, the following reforms are essential:

• Amend Articles 117, 331, and 318 to ensure clarity and prevent arbitrary enforcement.
• Strengthen the independence of the judiciary and procedural institutions.
• Expand space for civil society and independent media.
• Uphold international human rights commitments with genuine implementation.
• Educate citizens on constitutional freedoms to foster long-term democratic development.

Challenges

A central paradox persists: the tension between the desire for comprehensive control and the need to cultivate an open, pluralistic society. The Party continues to assert ideological dominance and a monopoly on truth, while civil society and independent media demand space for free expression, diversity of thought, and transparency.

In a system where total control is a guiding principle, genuine freedom of criticism is unlikely to flourish. Party-affiliated organizations, by design, cannot represent independent voices. Although digital platforms such as YouTube, TikTok, and podcasts have expanded avenues for expression, much of the content lacks depth on political and legal reform, favoring sensationalism and misinformation.

This media fragmentation confuses the public, blurring the lines between truth and distortion, critique and defamation. As a result, the constitutional right to freedom of expression is conflated with chaotic discourse, providing justification for increased government control under the argument that society is not yet “mature” enough to handle full freedom of speech.

This represents a profound tragedy in Vietnam’s information age—a persistent challenge in the effort to reform the Criminal Code and advance democratic governance.