Friday, December 28, 2007

Davies reviews Gillespie, Transplanting Commercial Law Reform: Developing a Rule of Law in Vietnam

Transplanting Commercial Law Reform: Developing a Rule of Law in Vietnam by John Stanley Gillespie (Ashgate, 2006) is reviewed on the Law and Politics Book Review by Iwan Davies, School of Law, Swansea University, Wales, UK. Davies writes:
At a time of increasing globalisation and the benchmarking of legal competitiveness, TRANSPLANTING COMMERCIAL LAW REFORM is a timely book. It adds to our understanding of how law and legal change influences the way we understand and conceptualise legal transplantation. In particular, John Stanley Gillespie develops a methodological framework guiding scholarship into legal transplantation, with particular reference to Vietnam. A useful section describes the legal transplantation debate. This literature focuses upon law’s relative autonomy from society and in this sense fails to deal with many questions revolving around the interaction between legal transplants and domestic laws and institutions within recipient countries.
Gillespie shows that conventional transplantation theories are too crude, not least because in the case of Vietnam for example, they failed to take into account Vietnam’s uneven history of legal borrowing. To understand legal transplantation in the Vietnamese context, Gillespie shows that it is necessary to develop new analytical tools dealing with the interaction between western-rights based laws and institutions with Marxist-Leninist ideological frameworks, taking into account state and non-state regulation.
The history of legal transplantation with Vietnam is discussed in the book, starting with neo-Confucian notions and Chinese-inspired imperial statecraft, through to the imposition of the French colonial legal system. Gillespie then explains why French colonial legal legacy was so easily swept aside by Soviet-inspired revolutionary reforms. In particular, pre-modern moral values were conflated with Marxist-Leninism to produce what he describes as a revolutionary morality that guided state rule until more emphasis was placed on law-based governance during the 1980s. A significant finding of the book is that conflicting ideologies do not necessarily constrain legal borrowing and, in fact, may actually create space for imported ideas. Indeed, in the context of transplanting commercial law in Vietnam, neo-liberal ideals supporting property and contractual rights were not blocked by Marxist-Leninist ideology with its emphasis on party power. Whilst it is conceded that party leadership did have the capacity to de-stabilise imported, private commercial rights, a limited rule of law in the commercial arena was considered to advance party objectives.
Legal transplantation was adopted in Vietnam as an aspect of state law-making. Legislative drafters interpreted and co-opted imported legal ideas to achieve strategic objectives. Gillespie’s case studies are particularly illuminating in this regard. They show that imported commercial rights were negotiated in three-way contests between elite level officials, local level officials and businesses. The discourse was not limited to the drafting process but was also expressed in courtroom disputes between party, state and private interests. Over time, it appears that imported legal ideas, particularly those advocating commercial rights, have provided the frame of reference for implementing the law in Vietnam. Increasingly, legal transplantation now takes place between like-minded groups in Vietnam, and there is an increasing tendency for imported laws to reflect the interests of powerful pressure groups, leaving politically unconnected entrepreneurs to self-regulate. State laws under autocratic legislation assume importance within Vietnam when domestic entrepreneurs seek state privileges, such as access to international markets or tenders.
The great contribution of this book is that it exposes the inadequacy of any deterministic model of legal transplantation. At the same time, the book challenges the conventional understanding about convergence and legal systems. However, it does not seek to answer the question of legal origins as a theory of development. Others have postulated that legal institutions and the rule of law are critical in the transition process of economies. Certainly, law and legal institutions do figure in measuring transitional economies. In this respect, law matters. This book does not seek to answer the question of legal origins as a theory of development. Important questions therefore remain: what is it about law that makes its origin important? Why should law play an important role in economic development, and what differences in legal systems affect, if at all, varying rates of economic development?

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