CHAPTER 2: CONCEPTUALIZING LAW’S FLEXIBILITY
1. Problems of Law Itself
1.3 Law May Have Gaps in It
Law may create further opportunities for the exercise of discretion where lawmakers have not foreseen all the contexts in which the principles and rules they create will be used. This is true of international law embodied in treaties and legislative law in national systems.
Hans Kelsen in his „pure theory‟ of law expanded on the idea of „gaps in the law‟ or lacuna. His theory of law is particularly focused on the codified forms of law found in civil
jurisdictions. He pointed out that such gaps resulted from having no general positive norm to regulate it.112 This is, however, a fiction as in a positive legal order there will always be an applicable rule although it may produce a result which is inequitable or unjust.113 He
108Joint Circular 02/2008 Part A(IV)(2)(2.3)(a). 109Joint Circular 02/2008 Part A(IV)(2)(2.3)(b). 110
Joint Circular 02/2008 Part A(IV)(2)(2.3)(d).
111
Joint Circular 02/2008 Part A(IV)(2)(2.3)(đ): A clea r e xa mple of the applicat ion of the last princip le is the provisions regulating the term of the protection of copyright between the 2005 Intellectual Property La w and the United States -Vietna m Bilatera l Trade Agree ment. The former generally g ives an author of a litera ry and artistic work a period of copyright protection during his or her life and fifty years after his or her death and this term may be up to no less than seventy-five years or one hundred years under the latter: See, respectively, Article 27 of the former and Article 4(4) Chapter II of the latter. Courts are required to apply the latter provisions when dealing with a copyright dispute over such conflict ing terms between those of the two contracting party states: Joint Circular 02/2008 Part A(IV)(2)(2.3)(b).
112 Hans Kelsen (trans Ma x Knight), Pure Theory of Law (University of Ca lifornia Press, 1967) 246-7. 113 Ibid.
considered some gaps that may be intentionally created by the legislator as in a provision of the Swiss Civil Code, which permitted a judge, where there was no applicable law, to decide according to the rule the judge would make if he or she were the legislator.114 This fiction of gaps arises from „a lack, based on a subjective, moral-political value judgment, of a certain legal norm within a legal order‟.115
He argued that these gaps are fictitious.116 Kelsen identified some gaps, as technical gaps. On this kind of gap, he wrot e:
Beside the so-called true gap, sometimes “technical gaps” are distinguished which are considered possible even by those who deny, fro m their positivistic point of vie w, the e xistence of true gaps.
114
The Swiss Civ il Code provision was quoted by Kelsen as the following: “The law is applicab le to all legal problems fo r which it contains a rule e xp lic itly o r by interpretation. If no prescription is contained in the law, the judge shall decide accord ing to custom and, where this too is lacking, according to the ru le which he would establish were he a legislator.”
115
Ke lsen, above n 112, 247.
116
In particu lar, Ke lsen wrote that:
The legislator may be induced to use this fiction through the consideration that the application of a statute created by him may lead to an unsatisfactory result under certain unforeseen and
unforeseeable circu mstances; and that it is desirable therefore to authorize the court, not to apply in such cases the statute that predetermines the content of its judgment, but to create an individual norm, whose content is not determined by a statute but adapted to the circumstances not foreseen by the legislator. If he were to fo rmulate this authorization in a theoretically correct fashion, that is, without fiction, he would have to say: “If the application of the valid legal order is unsatisfactory according to the moral-politica l opinion of the court in the present case then the court may decide the case according to its own discretion”. But such a formulation would allo w far too great authority to the court. The judge would be authorized to decide according to his own discretion whenever he considers the application of a valid lega l order as unsatisfactory even when he considered as unsatisfactory the application of general legal norm which imposes upo n the defendant or accused the obligation which he has violated according to the plaintiff or public prosecutor. If the mora l- politica l opinion of the judge replaces that of the legislator, then the legislator abdicates in favour of the judge. The attempt to limit the authorization to cases which the legislator has been foreseen is bound to fail because the legislator is unable to predetermine these cases; if he could predetermine them he would positively regulate the m himself. The assumption of the court t hat a case had not been foreseen by the legislator and that the legislator would have formulated the la w d iffe rently if he had foreseen the case usually rests on an unprovable guess. The legislator‟s intention is recognizable with sufficient certainty only insofar as it is e xpressed in the law he has created. It is for this reason that the legislator, to limit the authorization of the courts which he regards as indispensable, uses the fiction that the valid legal o rder is inapplicable in ce rtain cases for o bjective – and not for subjective, mora l-polit ical reasons; that the judge may function as a legislator only when the la w has a gap. But since the valid law is always applicable, since it has no gaps in this sense, the formu la, when its fictit ious character has been exposed, does not provide the intended limitation of the authorization granted to the court but its self-abolit ion. But if the court accepts the assumption that the law has gaps, then this theoretically untenable fict ion may – practica lly – have the intended effect. For the judge – especially one controlled by a higher court – who is not inclined to assume the responsibility for creat ing new la w will assume the e xistence of a gap only very rarely and therefore only rare ly ma ke use of his authorizat ion to take the place of the legislator. (247-9).
Such a technical gap is present when the legislator fails to prescribe something which he would have had to prescribe if it should be technically possible at all to apply the la w. However, that which is described as a technical gap is either a gap in the orig inal sense of the word, that is, a difference between a positive law and a desired law, or that kind of uncertainty that results from the fra me character of the general norm. The former is present if, for e xa mple , the la w accord ing to which in case of a sale, the seller is obligated to deliver the merchandise or, if he does not deliver, to compensate for the caused damage, does not determine who is running the risk when the sold me rchandise perishes before it is handed over, though no fault of either part ies. It is not true,
however, that the legislator pres cribes “nothing” for this case, but only that he does not prescribe that the seller is discharged from the obligation to deliver the merchandise or render co mpensation; a prescription, which is presumably regarded as desirable by those who assert that a ga p exists here; a prescription which, however, in no way needs to be supplied to make the la w applicable. Since the law does not even in the described case exe mpt the seller fro m the obligation to deliver the me rchandise or render co mpensation, the law in fact prescribes that the seller is running the risk.117
Such technical gaps can be perceived in international intellectual property law when it appears to prescribe „nothing for the case‟. One example, further discussed in Chapters 3 and 6, is the Washington Treaty which attempted to fill a gap which left layout-designs (topographies) of integrated circuits unprotected. Eight developing nations were the signatory states to the original Treaty. Two more have signed but many developing
countries, including Vietnam, have not.118 The Washington Treaty has not been signed by any developed countries. Consequently it has never come into effect but parts of it have been subsequently drawn on in TRIPs to fill continuing gaps.
A perceivable technical gap is emerging in copyright law which does not provide for neighbouring or related rights in respect of journalist articles and the Internet. Publishers of newspapers are now arguing that this gap should be filled and pushing the European
Commission and the United States go vernment to take action.119
117
Ke lsen, above n 112, 249-50.
118
WIPO-Ad min istered Treaties, Washington Treaty: Contracting Parties
<http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=29 >.
119
The European Publishers‟ Council has made this de mand in the Ha mburg Dec laration. In the United States the Fair Syndication Consortiu m is pressing for the change. See: „Publishers claiming copyright theft by aggregators aim to protect content‟ The Guardian (13 July 2009) <www.guard ian.co.uk>
In its text TRIPs often has gaps, whether technical or true ones under Kelsen‟s
classification, apart from the ambiguity of language used including in „conferring rights squarely over communications online‟ requiring these to be dealt with in part by two 1996 WIPO Treaties.120 These gaps are usually found in provisions providing general criteria for the limitations of, or exceptions to, intellectual property rights, controlling particular exemptions regulated in national legislation. As an international agreement is not from a supreme sovereign ranking above members and imposing specific provisions on them,121 this is inevitable.
Examples are seen in TRIPs Article 13, „Limitations and Exceptions‟. Members are permitted to create exceptions and limitations to copyright infringement subject to three conditions. They have to confine them to „certain special cases‟ which „do not conflict with a normal exploitation of the work‟ and which „do not unreasonably prejudice the legitimate interests of the right holder‟. Many questions may be asked about a local law utilizing this provision. What may fall within „limitations‟ and „exceptions‟? Are the differences between them and, if so, what are they? Why does TRIPs mention the both? What is the scope of the provision? What are the limits to a normal exploitation of a work? What amounts to
unreasonable prejudice? What are the legitimate interests of the right holder?122
Kelsen‟s concept of legal gaps is also reflected within Vietnam‟s legal system and its laws on intellectual property. Historically, there are significant gaps in its legal system. After the 1945 Declaration of Independence, the Democratic Republic of Vietnam was established. Because of time, cost, lack of experience and expertise, and other factors, it was impossible to immediately create a new legal system. Courts were ordered to apply existing or colonial laws until new laws were made, provided that they did not run counter to the country‟s independence and the young democratic state‟s political regime.123
120
Christopher Arup, The World Trade Organization Knowledge Agreements (Ca mb ridge University Press, 2nd ed, 2008) 453-9, 499-501.
121
Henkin and Ha ll, above n 69.
122
These are discussed in Chapter 4 on copyright and related rights in Vietna m under TRIPs‟ fle xibilities.
123 To pro mote this was Decree 47/ SL of 10 October 1945, pro mulgated by President Ho Chi M inh. Those
Vietnam has endeavoured to create its own legal system with comprehensive laws.124 To implement these codes, laws, and ordinances the government and ministries have made further decrees, decisions, directives, and circulars in giving guidance. This is required because of the high levels of generalization in legislation made by the National
Assembly.125 There are gaps in these instruments. As gaps are discovered, they are filled through law- making processes of enactment, amendment, or supp lementation in a
continuous program of law reform.126 An example is the absence of principles protecting intellectual property have gradually been filled by, among other enactments, the Industrial Property Ordinance (1989), the Copyright Ordinance (1994), Pa rt VI of the Civil Code (1995, 2005), and the Intellectual Property Law (2005, 2009).
Vietnam is a country with neither a civil law, nor common law tradition. It may have been once categorized as a third, or socialist legal system.127 Now its legal system is a mixed one with many legal transplants, or imports, from other legal systems from different periods of its historical development including China, France, the former socialist countries,
especially the Soviet Union, and increasingly western countries.
Formally judges are not authorized to interpret the law, limiting the flexibility open to them. The National Assembly is empowered to make and amend the Constitution and other
1936 [the Central Region Civ il Code of 1936]; and, Bộ Dân Luật Giản Yếu Nam Kỳ 1883 [the Southern Region Concise Civil Code of 1883]. On 22 May 1950 President Ho Chi M inh enacted another order modifying or changing some rules of the old civ il law system wh ich did not suit the principles of the new regime. This inc luded the equal treatment of wo men in marital, fa mily, inheritance rights. On 10 Ju ly 1959 the Supreme People‟s Court issued an officia l instruction (Direct ive 772/TATC) to end that application.
124 These include the four Constitutions of 1946, 1959, 1980, and 1992 (a mended 2001); the Marriage and
Fa mily La w (1959, 1986, 2000); the Ord inance on Inheritance (1990); the Ord inance on Civ il Contracts (1991); the Crimina l Code (1985, 1999, 2009); the Crimina l Procedure Code (1988, 2003); the Fore ign Investment Law (1987, 1996, 2000, 2003, 2007); the Civil Code (1995, 2005); the Civil Procedure Code (2004); the Co mpetit ion La w (2004); the Co mmerc ial La w (2005); the Enterprise La w (2005); the Technology Transfer Law (2006); and, the Law on the Enact ment of La ws (1996, 2008).
125
Gillespie, above n 12, 176.
126
Ibid, 187: Gillespie describes how la wyers acting for fo reign clients interact with senior officia ls in drafting these instruments. They expla in how a neighbouring lega l system, often Hong Kong or Singapore, dealt with the issue. He states: „Incrementally, these interventions are beginning to weave a protective we b around the private legal rights that secure the interests of capitalist enterprises.‟
127 Philip W Ba ker and Be rry Fong-Chung Hsu, „Co mmon La w under Socialist Legal System: The Future of
laws and to determine the program of the reform of laws and ordinances.128 It is also empowered to interpret the Constitution, laws, and ordinances particularly through resolutions by its Standing Committee.129 This power has rarely been used and is not widely considered or discussed.130 The National Assembly also receives reports by the State President, its Standing Committee, the Government, the Supreme People‟s Court, and the Supreme People‟s Procuracy on their respective activities.131
This may extend to considering gaps in the laws that they administer. In principle, such bodies have the power to suggest that the law be reformed.
Neither precedent, nor explication, is made by the judges, although significant cases may be occasionally summarized for use by subsequent trial judges in the annual reports of the Supreme People‟s Court. It also publishes the Supreme People’s Court Journal.
Increasingly the Supreme People‟s Court is giving guidance to the lower courts through the cases brought to its Courts of Appeal and it is also increasingly proactive in drafting
subordinate legislation to guide the lower courts.132 As well hundreds of official letters to lower courts and other organizations to give guidance on technical matters are issued each year.133 They often deal with commercial cases.134
In practice, a theory of filling legal gap, known as „analogy‟, based on the similarity between the two given situations, is taught in law institutions and legislatively-stipulated and judicially-applied. Although analogy is argued to be one of the oldest methods of
128Vietnam Constitution 1992 art 84(1).
129Vietnam Constitution 1992 art 91(3); Law on the Enactment of Laws 2008 arts 11(1) & 12(2): Besides, the
National Assembly has an overriding power to supervise the observance of the Constitution and its laws, ordinances, and resolutions according to Article 84(2) of the 1992 Constitution.
130
According to Võ Trí Hảo, „Va i trò giả i thích pháp luật của tòa án‟ [The Ro le of Courts in Interpret ing La w] (2003) 3 Tạp chí Khoa học pháp lý [Legal Sc ience Rev iew] <http://www.hc mulaw.edu.vn> (visited 10 March 2009) the Standing Co mmittee of the Nat ional Assembly has used the power to interpret laws no more than three times.
131
Vietnam Constitution 1992 art 84(2).
132
Pip Nicholson, People Borrowing Court Systems: The Experience of Socialist Vietnam (Mart inus Nijhoff, 2007) 119-20, 266-7; Gillespie, above n 12, 209-10.
133
Ibid.
134 Ibid : The ro le of the Court and its Judicia l Council is returned to in Chapter 8 and Appendix 1 to this
decision- making,135 the utilization of it in Vietnam is influenced by the Soviet Union‟s legal practice.136 Generations of local legal professionals were educated in the Soviet Union and Eastern Europe.137
In Vietnamese legal theories, analogy is separated into analogy of law and analogy of legislation.138 In the former instance, a judge may make the analogy to a specific provision in a law.139 In the latter instance, the judge may refer to the whole legislative system, based on justice and common sense, to deal with a case.140 The use of analogy in criminal law was terminated by the 1985 Criminal Code.141 Analogy in civil law was officially
recognized, for the first time, by Article 14 of the 1995 Civil Code as a basic principle. It is now incorporated in Article 3 of the 2005 Civil Code but no longer as a basic principle.142 This may have decreased its formal importance but in practice its use may be even more common and provide both trial and appellate courts with another flexible tool.
In the context of its integration into the WTO Vietnam, through a sustained period of legislative reforms, has attempted to fill, step by step, gaps in its legislation to meet its WTO obligations. Moving to a free market from a socialist economy is a challenging
135
Katja Langenbucher, „Argu ment by Analogy in European Law‟ (1998) Cambridge Law Journal
<http://journals.cambridge.org/action/displayAbstract?aid=1541 >.
136
In the Soviet Un ion, in a criminal case where a judge found an individual „socially dangerous ‟ he/she could convict him/her o f crime though no specific article of the criminal code had been breached „by finding the action of the accused analogous to some different but re latively similar action that had been defined as crime by the code.‟ In a civil case a judge was allowed to reject the application of a ru le of the civil code if he