Theorizing the development of legal reasoning in an authoritarian polity

Systems theory offers a promising framework in which to analyze how judges might harness legal reasoning to expand their authority (Luhmann Reference Luhmann2004; Nobles and Schiff Reference Nobles and Schiff2017). It contributes the insight that legal reasoning can enhance judicial authority through its “conflict-alienating” effect—its capacity to reconfigure or displace extralegal thinking in the courtroom (Teubner Reference Teubner, Priban and Nelken2001). Gunther Teubner (Reference Teubner, Priban and Nelken2001, 22–23) explained this process:

Alec Stone Sweet (Reference Stone Sweet2000, 29–30) makes a similar point in which “legal discourse or legal consciousness has causal power: The central claim regarding legal discourse is that legal actors, judges, lawyers, and law professors think and talk differently than do actors outside of the legal world.” Within this imaginary legal space, political, social, and moral conflicts are scarcely recognizable because they have been transformed into technical legal questions framed by elaborate doctrinal rules and analytical techniques.

“Conflict alienation” occurs when legal discourse in courtrooms functions differently from extralegal discourses, such as political, moral, or economic communication (Teubner Reference Teubner, Priban and Nelken2001; Nobles and Schiff Reference Nobles and Schiff2017). For example, courts use internally generated epistemic assumptions to inform their responses toward external (to the system) norms (Luhmann Reference Luhmann and Teubner2011; King Reference King, Banakar and Travers2013). Contrary to an enduring misconception,Footnote ⁵ systems theorists have long recognized that concrete social organizations, such as courts, think and converse using more than one discursive system (Hiller Reference Hiller, de Graaf, von Maravić and Wagenaar2010; Nobles and Schiff Reference Nobles and Schiff2017). Although courts privilege legal discourse, this dominant mode of thought orients and reconfigures without entirely displacing extralegal norms (Nassehi Reference Nassehi2005; Nobles and Schiff Reference Nobles and Schiff2017). Courts are consequently not closed to the external world; rather, they process external knowledge through their own system of logic based primarily, although not exclusively, on legal discourse (Nassehi Reference Nassehi2005).

Systems theory explains how legal reasoning might transform extralegal norms in the courtroom (Nassehi Reference Nassehi2005; Nobles and Schiff Reference Nobles and Schiff2017). As members of a legal discursive system, judges must make decisions that are recognizable as legal decisions within their system (Teubner Reference Teubner, Priban and Nelken2001; Nobles and Schiff Reference Nobles and Schiff2017). For example, they must decide which legal norms are appropriate to particular cases and who is entitled to benefit from the law. If they want their judgments upheld on appeal, judges need to frame their decisions using the dominant epistemic assumptions that orientate communication within the court system (Nassehi Reference Nassehi2005; King Reference King, Banakar and Travers2013). They must disregard ideas that are considered irrelevant and convert others into a format that is compatible with legal processes, norms, and doctrines (Kahan et al. Reference Kahan, Hoffman, Evans, Devins, Lucci and Cheng2016; Strong Reference Strong2020).

A key question is whether judges can use legal reasoning to expand their authority over meaningful social, economic, and political arenas. Larry Alexander and Emily Sherwin (Reference Alexander and Sherwin2008, 25–26) framed this inquiry as: “[D]o courts reason deductively from rules posited by others; or posit law, relying on moral and empirical judgment, as any lawmaker must?” In addressing this question, systems theorists distinguish between deductive (syllogistic) legal reasoning, which mechanically applies law to facts and principles-based reasoning that actively engages with extralegal knowledge (Van Krieken Reference Van Krieken2006; Winczorek Reference Winczorek, Febbrajo and Harste2013). Deductive (syllogistic) legal reasoning reaches conclusions based on legal propositions that are derived from already acquired, or posited, information (Van Krieken Reference Van Krieken2006). It syllogistically applies predetermined legal rules and principles to sets of facts. Syllogistic reasoning requires little discretionary capacity because judges fit case facts into pre-existing legal frameworks and do not posit law (Alexander and Sherwin Reference Alexander and Sherwin2008). For this reason, syllogistic reasoning is unlikely to expand judicial authority (Samuel Reference Samuel2009; Strong Reference Strong2020).

Reasoning that converts extralegal knowledge into legal principles—what we term principles-based reasoning—offers more potential to expand judicial authority (Teubner Reference Teubner, Priban and Nelken2001; Nobles and Schiff Reference Nobles and Schiff2017). Judges applying principles-based reasoning are guided by an explicit or intuitive sense of extralegal norms, such as policy considerations and customary norms (Samuel Reference Samuel2009; Strong Reference Strong2020). They draw on this extralegal knowledge to hermeneutical search for the deeper normative principles that underpin and explain laws and legal principles. Judges can use principles-based reasoning to increase their authority in cases where there is guiding law and also in cases where there is no guiding law. For example, judges might employ contextual and functional analysis to creatively reinterpret existing statutory provisions to expand or contract rights and obligations (Samuel Reference Samuel2009). In other cases where there is no guiding law, judges might develop new legal principles that determine who caused social or economic harm and whether they are legally at fault (Engel and McCann Reference Engel, McCann, David and McCann2009; Samuel Reference Samuel2009). Judges may also creatively use intentionality analysis to reinterpret their statuary powers in criminal trials to determine whether defendants are psychologically, morally, and emotionally entitled to clemency (Samuel Reference Samuel2009; Strong Reference Strong2020). These examples show how principles-based reasoning might expand judicial authority over new social and economic fields (Brinks and Blass Reference Brinks and Blass2017).

Judges use principles-based legal reasoning to bring extralegal and legal knowledge into communication through a process that Niklas Luhmann (Reference Luhmann2004, 381–88) called “structural coupling.” This process allows judges to draw on external (to the legal system) policies and norms to reframe legal thinking. The interaction between legal reasoning and extralegal knowledge irritates and redirects the development of legal semantics, rules, concepts, principles, and doctrines (Winczorek Reference Winczorek, Febbrajo and Harste2013; Nobles and Schiff Reference Nobles and Schiff2017). It ensures that legal reasoning cannot always follow its own internal logic and, to some extent, is guided in directions that are compatible with extralegal systems of thought (Teubner Reference Teubner, Priban and Nelken2001). Conflict alienation occurs when judges use “structural coupling” to transform extralegal knowledge into a format that is compatible with legal norms and doctrines (Luhmann Reference Luhmann and Teubner2011; Nobles and Schiff Reference Nobles and Schiff2017).

We have drawn three core research questions from systems theory to guide our inquiry into judicial authority:

• • Is there evidence for principles-based legal reasoning in Vietnamese judicial decision-making?

• • Is legal reasoning hardening and/or transforming the distinctions within courts between legal and extralegal norms?

• • Are judges using legal reasoning to extend their authority over significant political, social, and economic problems?

Methodology and data

Our study uses a mixed-methods research program to investigate legal reasoning in Vietnam (Timans, Wouters, and Heilbron Reference Timans, Wouters and Heilbron2019). Qualitative methods (that is, in-depth interviews) explore what judges think about legal reasoning, and quantitative methods analyze written judgments. A comparison of these analytical perspectives offers insights into the differences (if any) between what judges say about legal reasoning and what is officially recorded in written judgments. To examine legal reasoning in written judgments, we analyzed 186 appellant cases decided between 2018 and 2024 by city and high courts in Hà Nội and Hồ Chí Minh City. These appellate courts judge most of the controversial and difficult cases in Vietnam (Phạm Thị Như Quỳnh 2017; Trương Thi Hòa 2019). All the cases reviewed are available on the Supreme People’s Court website and were accessed in 2025.Footnote ⁶

We selected these cases for two main reasons. First, the Supreme People’s Court identified these cases as possible sources of case law because they provide clear examples of legal reasoning (Lê Mạnh Hùng 2017). Second, both Vietnamese (Lê Văn Sua 2020) and international scholars (Kwai Hang Ng and He Xin Reference Ng and Xin2017; Strong Reference Strong2020) argue that appellant level courts are more likely than inferior courts to use discretionary power to expand their authority. It is important to note that selection bias in Vietnam excludes from publication approximately 12 percent of sensitive criminal cases that concern state secrets and/or high-profile dissidents (Nguyen Reference Nguyen2019). We analyzed the judgments by searching for decisions that used syllogistic reasoning and principles-based reasoning (that is, causal, contextual, functional, and intentionality reasoning). Although often descriptive and formulaic, each judgment provided valuable information about whether judges mechanically applied law to facts and/or exercised discretionary power by transforming extralegal norms into new legal principles (Winczorek Reference Winczorek, Febbrajo and Harste2013; Nobles and Schiff Reference Nobles and Schiff2017). We focused primarily on legal reasoning concerning questions of law as this is where the literature suggests judges are most likely to exercise discretionary power and expand their authority (Solomon Reference Solomon and James2015; Brinks and Blass Reference Brinks and Blass2017). Although the courts deciding these cases were comprised of three judges, our interviews suggest that judgments are usually formulated and written by the presiding judge (Interviews J13, J16, and J17).

The qualitative research comprises five group interviews and twenty-eight in-depth interviews with twenty-nine judges (see the Appendix for details). The judges were identified using a combination of purposive, niche, and snowball sampling methods (Atkinson and Flint Reference Atkinson and Flint2001). They were selected to represent the judicial approaches across different jurisdictional levels (district and appellant courts), geographical areas (northern and southern cities as well as industrial and rural provinces), and genders (59 percent male and 41 percent female). To preserve the anonymity of the interviewees, we have not disclosed the precise location of the district-level courts.

The judges were encouraged to conceptually evaluate the objectives, reasoning processes, and epistemic assumptions informing their legal reasoning. They were invited to reflect on how they applied different modes of reasoning to achieve desired results (Edelman, Erlanger, and Lande Reference Edelman, Erlanger and Lande1993). The judges were also asked open-ended questions, such as “what are the main sources of authority used to decide particular cases,” “how are cases decided if there is no guiding law,” and “what techniques and processes guide decision making”? Narratives—the stories that judges told about court cases—were analyzed to identify how judges used syllogistic and principles-based reasoning to decide cases (Polkinghorne Reference Polkinghorne2005; Engel and McCann Reference Engel, McCann, David and McCann2009).

We next used three criteria to determine whether judges are expanding their authority over significant political, social, and economic cases (Solomon Reference Solomon and James2015; Brinks and Blass Reference Brinks and Blass2017). First, did judges use legal reasoning to displace and/or transform extralegal norms? Second, did new legal principles appear untroubled by contradictions and inconsistencies with external (to the legal system) patterns of behavior and moral norms? Third, did judges use legal reasoning to reach decisions in socially and politically “hard” cases? For example, we looked for evidence that judges are prepared to extend legal protection into new social and economic areas and/or to use legal reasoning to rule against state authorities in administrative and criminal law cases.

However, before turning to the qualitative and quantitative data, it is instructive to understand the institutional structure in which Vietnamese judges operate.

Đổi Mới reforms and the creation of a law-based state (1986–2016)

During the high socialist period (1954–86), Vietnamese courts were unpromising sites for legal reasoning (Nicholson Reference Nicholson2007; Pham Duy Nghia and Do Hai Ha Reference Pham Duy and Ha2018). In the 1960s, the Democratic Republic of Vietnam established a Soviet-influenced legal system that rejected the separation-of-power doctrines and placed the judiciary under the Communist party (Đinh Gia Trinh 1961). According to the doctrine of pháp chế xã hội chủ nghĩa (socialist legality), law functioned as a political instrument to promote party policies. It did not matter whether the party line was formally legislated or not because officials and the public were expected to follow party invocations as if they were law (Đinh Gia Trinh 1961; Phạm Điềm Reference Phạm2013).

Differing from the Soviet model, the Vietnamese legal system during this period emphasized leadership through đạo đức cách mạng (revolutionary morality) (Phạm Điềm Reference Phạm2013). President Hồ Chí Minh argued that law and morality were intertwined and revived the precolonial maxim that judicial decisions should be hợp tình hợp lý (“sentimentally appropriate and reasonably sound”) (Letsoni Reference Letsoni1963). Senior judges encouraged junior judges to move beyond legal texts and use revolutionary morality to craft socially appropriate outcomes (Nicholson Reference Nicholson2007; Phạm Điềm Reference Phạm2013). Judges were discouraged from developing legal reasoning that might interpret, and, by implication, question, party directives (Thành Duy 1995; Nicholson and Pham Lan Phuong Reference Nicholson and Phuong2018). In this decision-making environment, judges practised political prudence rather than jurisprudence.

Đổi Mới (renewal) reforms formalized in 1986 transformed the centrally planned economy and opened the country to global influences (Lê Mạnh Hùng 2017; Bui Reference Bui2019). Capturing the spirit of reform, the “socialist rule of the law state” doctrine retained the leadership of the Communist party, while placing more emphasis on governance through law and legal institutions, especially the courts (Phạm Thị Như Quỳnh 2017). Although legislation incrementally expanded to protect private economic and civil relationships, the party insisted on retaining tight control over the judiciary through the appointment and promotion of judges (Thành Duy 1995; Nicholson and Pham Lan Phuong Reference Nicholson and Phuong2018).

During the initial post-Đổi Mới period (1986–2016), courts were expected to passively and mechanically apply the law to resolve cases (Phạm Điềm Reference Phạm2013; Nicholson and Pham Lan Phuong Reference Nicholson and Phuong2018). The law was supposed to have already judged cases, and courts used deductive (syllogistic) reasoning to make the facts correspond to the law (Đinh Thế Hưng 2009; Lê Mạnh Hùng 2017). Judges were not permitted to review the constitutionality of legislation and were expected to reflexively apply top-down instructions. To promote uniformity in judicial decisions, higher courts sent chỉ đạo chuyên môn (professional guidance) to lower courts (Bùi Ngọc Sơn 2003; Tưởng Duy Lượng 2007). Top-down controls discouraged courts from developing an autonomous system of legal reasoning. Courts during this period consequently lacked a hermeneutic tradition capable of transposing political, moral, and economic precepts into judicable questions (Phạm Điềm Reference Phạm2013; Nicholson and Pham Lan Phuong Reference Nicholson and Phuong2018).

Three empirical studies from this period found little evidence that judges exercised discretionary power through legal reasoning. After reviewing 178 Supreme People’s Court cassation judgments issued between 2002 and 2006 and interviewing judges, Yuka Kaneko (Reference Kaneko2009–10, 340) concluded that “[t]hey [judges] usually articulate a lengthy reference to raw facts, without streamlining legal factors according to statutory provisions, before abruptly providing a conclusion without mention to the detailed reasoning of fact-finding and legal application. … Ultimately, these judgments amount to compromises that seek an emotional balance between the parties rather than implementing the law.” Kaneko described a paternalistic culture of dispute resolution in which judges preferred informal conciliation over decision making based upon legal reasoning and substantive law.

In another study from this period, John Gillespie (Reference Gillespie2011) reviewed forty-one provincial and Supreme People’s Court judgments and interviewed fifty judges and twenty-four lawyers involved in land disputes. He found that “[t]he Supreme Court confines itself to narrow procedural issues and avoids making doctrinal rulings on the substantive meanings of land laws” (Gillespie Reference Gillespie2011, 272). To overcome gaps, conflicts, and ambiguities in the statutory law, judges used syncretic reasoning to ground their decisions on extralegal notions of công bằng (fairness) and hợp lý (reasonableness). Adding to the literature, Bui Bich Lien (2016) reviewed 120 court cases concerning inheritance deputes and interviewed seventeen judges and twenty-three lawyers. She concluded that “legal education does not teach legal reasoning. Without this essential skill, judges were unable to construct and understand customary information in law’s own terms” (Bui Bich Lien 2016, 257–58).

A common theme in these studies is that judges during the initial post-Đổi Mới period did not use principles-based legal reasoning to creatively interpret law. Instead, judges deployed syllogistic reasoning to mechanically apply legal provisions to case facts. In the rare cases where judges exercised discretionary power, they used syncretic reasoning to select legal and extralegal norms according to the context of each case (Kaneko Reference Kaneko2009–10; Gillespie Reference Gillespie2011; Bui Bich Lien 2016). The studies show that judges rarely (if ever) used principles-based legal reasoning to alienate conflicts from external (to the courtroom) norms and precepts (Teubner Reference Teubner, Priban and Nelken2001; Nobles and Schiff Reference Nobles and Schiff2017). Judges during this period lacked a usable legal history, such as legal doctrines and reported cases, that might have informed the development of legal reasoning (Bùi Ngọc Sơn 2003; Lê Văn Sua 2020). This raises the question whether recent reforms have established conditions that might encourage judges to move beyond legal formalism and creatively use principles-based legal reasoning to extend their authority?

Judicial reforms and the emergence of legal reasoning

Political leaders in authoritarian regimes face a dilemma in reforming courts. The state wants to extract the benefit of a judiciary that can resolve social problems, while minimizing the risks, especially legal challenges to state interests (Ginsburg and Moustafa Reference Ginsburg and Moustafa2008; Kwai Hang Ng and He Xin Reference Ng and Xin2017). The difficulty for political leaders is that effective and legitimate courts require the appearance of judicial authority where judges have the discretionary power to treat disputants impartially according to legal norms (Ginsburg and Moustafa Reference Ginsburg and Moustafa2008).

The Vietnamese Politburo aimed to resolve this dilemma by introducing far-reaching reforms that promoted a competent and responsive judiciary, while retaining party control over the courts (Phạm Thị Như Quỳnh 2017; Hoàng Thi Bích Ngọc 2019). In 2005, the party issued Resolution no. 49 NQ/TW on the Strategy for Judicial Reform to 2020, which proposed adversarial court processes, the publication of court decisions, and the development of án lệ (case law) (Hoàng Thi Bích Ngọc 2019; Lê Văn Sua 2020).Footnote ⁷ After a slow start, reforms gained momentum following constitutional amendments in 2013 that recognized a quyền tư pháp (judicial right) to protect “justice, human rights and citizen rights” (Phạm Thị Như Quỳnh 2017; Hoàng Thi Bích Ngọc 2019).

In 2014, Law no. 62/2014/QH13 on the Organization of People’s Courts sought to professionalize the judiciary by securing tenure for judges and reducing the influence of local government officials.Footnote ⁸ It also limited the grounds for refusing cases—a reform designed to prevent judges from referring difficult cases to local government officials (Phạm Thị Như Quỳnh 2017; Lê Văn Sua 2020). In addition, the law established a mechanism for developing case law. Currently, the Supreme People’s Court has issued seventy-two case laws that cover a wide range of areas, especially in civil, commercial, and criminal jurisdictions (Nguyễn Anh Tuấn 2023). Deepening these reforms, most court decisions since 2017 have been published on the Supreme People’s Court website. In preparation for this reform, judges have been trained since 2012 to write judgments that explain the reasoning processes used to decide cases (Phạm Thị Như Quỳnh 2017; Lê Văn Sua 2020). In addition, starting in 2015, major law schools have incorporated legal reasoning into their general legal education—initially, as an elective and, later, as a compulsory subject (Interview J10; see also Nicholson and Do Reference Nicholson, Do, Abel, Sommerlad, Hammerslev and Schultz2020).

For the purposes of analysis, we have designated the initial post-Đổi Mới period from 1954 to 1986 as the pre-judicial reform period and the period from 2017 onward as the post-judicial reform period. To understand whether legal reasoning has changed from the pre-judicial reform period, we reviewed 186 cases decided by the high and city courts in Hà Nội and Hồ Chí Minh City between 2017 and 2024.

Analyzing legal reasoning in case decisions

Empirical studies from the pre-judicial reform period show that judges rarely (if ever) used principles-based legal reasoning to decide cases (Kaneko Reference Kaneko2009–10; Gillespie Reference Gillespie2011; Bui Bich Lien 2016). This suggests that a finding that judges during the post-judicial reform period routinely used principles-based legal reasoning indicates a significant change in judicial decision making. We analyzed 186 cases decided during the post-judicial reform period to determine how judges used legal reasoning to reach decisions (see Table 1). Table 1 differentiates syllogistic reasoning and principles-based reasoning, such as causal, contextual, functional, and intentionality reasoning. It also shows the different types of legal reasoning used in different jurisdictional areas.

Table 1.

Legal reasoning in appellant-level courts (2017–24)

Note: ^aSyllogistic and principles-based reasoning are the two key types of legal reasoning, whereas causal, contextual, functional, and intentionality are categories of principles-based reasoning.

Reconciling reason and sentiment in judicial decision making

Vietnamese judges were historically encouraged to avoid excessive legality and craft decisions that were hợp tình hợp lý (sentimentally appropriate and reasonably sound) (Nicholson Reference Nicholson2007; Gillespie Reference Gillespie2011). This syncretic approach to decision making enabled judges to select legal and extralegal norms that reflected the context of each dispute. Studies during the pre-judicial reform period found that judges routinely used syncretic decision making (Kaneko Reference Kaneko2009–10; Gillespie Reference Gillespie2011; Bui Bich Lien 2016). Although official pronouncements during the post-judicial reform period insist that courts have replaced extralegal norms with legal formalism (Phạm Thị Như Quỳnh 2017; Hoàng Thi Bích Ngọc 2019), judges insisted that courts continue to rely on reason and sentiment in deciding cases. Judges equated hợp lý (reason) to legal rules and hợp tình (sentiment) to social morality (đạo đức xã hội) (Interviews J1, J3, and J10). While hợp lý requires adherence to legal principles, hợp tình encourages a focus on situational factors such as personal backgrounds, motivations, and attitudes as well as social factors such as personal relationships and dư luận (public opinion).

Judges believe that hợp tình is necessary to remedy inflexible laws and to harmonize law with social morality (Interviews J4, J10, and J12). As a Hồ Chí Minh City High Court judge observed, “[r]eferring to hợp tình in decisions helps overcome the rigidity of the law and thus secures a more satisfactory outcome” (Interview J13). A District Court judge went on to explain that, in contrast to hợp lý, hợp tình is “flexible [mềm], uncertain [mơ hồ], and depends on the judge’s perception and ‘internal beliefs’ [niềm tin nội tâm]” (Interview J4). Illustrating this point, another District Court judge (Interview J12) discussed the social problems created by strictly applying land-zoning regulations: “If these regulations are applied, there will be many cases where land titles cannot be recognized and many people will have nowhere to live. … In short, the regulations provide clear outcomes, but we must resolve cases according to socially appropriate outcomes and not unbendingly apply the law.” Other judges emphasized the role hợp tình plays in fashioning socially acceptable decisions. For instance, a judge from the Đồng Nai Provincial Court said: “We all need to decide cases in a manner that combines both hợp tình and hợp lý. What this means is that we decide cases in ways that are persuasive and earn people’s respect” (Interview J17).

If law alone does not guide decision making, as our interviews suggest, then it is instructive to understand how judges select and construe extralegal norms. Judges said they used niềm tin nội tâm (inner beliefs) to construct socially appropriate outcomes. This all-encompassing notion was understood as an internalized moral framework that enabled judges to harmonize and balance conflicting interests. A Hà Nội High Court judge described the application of inner beliefs during an inheritance case (Interview J15). A dispute arose over an intestacy between two surviving daughters. The older daughter was married and financially secure, while the younger daughter lived with her parents until they passed away. Oral evidence stated that the parents intended for the younger daughter to inherit the entire estate. According to Article 651 of Civil Code no. 91/2015/QH13, the court was expected to ignore oral testamentary intentions and divide the estate equally among the surviving children.Footnote ³² The judge turned to inner beliefs for guidance in resolving the case:

Here, the judge followed inner beliefs to identify lòng hiếu thảo (filial piety) as the customary norm that produced the most appropriate outcomes. The younger daughter demonstrated filial piety by caring for her parents and tending the family alter. This inner belief guided the selection of an extralegal norm that produced socially appropriate outcomes. The judge then transformed this extralegal norm into a legal principle that rewarded beneficiaries who demonstrated filial piety. The new principle displaced the statutory presumption that surviving children should share intestate estates equally.

In another example, a District Court judge described a matrimonial dispute where the wife was not legally entitled to matrimonial property contributed by her husband’s family: “When the marriage dispute was brought to court, legally the property belonged to the husband’s family. But this outcome did not guarantee justice [lẽ công bằng] because the wife sacrificed her youth and was pushed out of the house with empty hands. As a judge, I must decide how to ensure justice based on inner beliefs and community expectations and norms” (Interview J15). The judge followed inner beliefs to identify a social norm that required the distribution of matrimonial property according to need. This norm was considered appropriate because it delivered an outcome that conformed to community expectations of justice. The judge then transformed this social norm into a legal principle that overrode the presumption in Law no. 52/2014/QH13 on Marriage and Family that spouses are entitled to matrimonial property contributed by their families.Footnote ³³

Inner beliefs also inform commercial law decisions. A District Court judge argued that “[c]ourts not only have to firmly grasp the law, and the contents of cases, but also need to muster the courage to find and fight against legal loopholes. As I said, in the end the purpose of law is to protect the rights of the people” (Interview J22). Influenced by this notion of social equity, the judge developed a legal principle that lifted the corporate veil to prevent a company owner from hiding assets in a network of related corporations. As in the inheritance and family law cases, the judge justified selecting this norm because it produced outcomes that accorded with notions of social justice.

We have previously argued that judges developed a scheme of intelligibility (that is, principles-based legal reasoning) that transforms extralegal norms into legal principles. Our analysis of inner beliefs adds to this finding by showing how judges select extralegal norms. Although the judges interviewed came from different geographical locations and jurisdictional levels, they were remarkably consistent in describing both the function of inner beliefs and the types of social norms that promote social justice. Senior judges explained that courts have cultivated inner beliefs for decades as a means of guiding decisions that produce socially acceptable outcomes (Interviews J9, J10, and J15). The interviews imply that inner beliefs change to reflect prevailing social norms in Vietnam. For example, judges deciding cases involving ethnic minority litigants in highland areas enlisted different sets of social norms to judges working in lowland cities and provincial centers (Interviews J1, J2, and J3).

In a fundamental epistemic change from the pre-judicial reform period, our findings show that judges are increasingly reluctant to use syncretic reasoning to guide decision making. They now use legal reasoning to transform extralegal norms into new legal doctrines. This process of “structural coupling” brings extralegal knowledge into conversation with legal knowledge (Luhmann Reference Luhmann and Teubner2011; Nobles and Schiff Reference Nobles and Schiff2017). Structural coupling enables judges to develop legal fictions that overcome shortcomings in legal texts, government policies, and moral narratives. It offers law a feedback link with the external (to the court) environment, but it also alienates conflicts from social norms and practices. Structural coupling gives judges a scheme of intelligibility that filters sentiment through legal reasoning.

Ordering sentiment with legal reason

During the interviews, judges explained the turn away from syncretic decision making (Interviews J5 and J7). In a representative statement, a Supreme People’s Court judge observed that,

Making a similar point, a District Court judge noted: “I always need a legal rule to defend my decisions that base law on fairness and social justice [that is, customary norms]. To avoid appeal, I must explain why the legal rule corresponds to and covers my argument about social justice, otherwise it is not possible to say anything new” (Interview J20). The judge went on to say: “Of course, reason and sentiment are implicitly [ngầm] embedded in written cases because decisions must follow the law and be rationally and legally presented.”

As members of a legal discursive system, judges are expected to make decisions that are recognizable as legal judgements within their system (Teubner Reference Teubner, Priban and Nelken2001; Nobles and Schiff Reference Nobles and Schiff2017). Judgments must communicate decisions using a language that is comprehensible to the scheme of legal intelligibility ordering the court system. This means that judges must use the same schemes of intelligibility to write judgments that other judges and lawyers use to decode their judgments. In writing decisions, judges need to transform extralegal norms into a legal language that prevents their decisions from being overturned on appeal as errors in law.

Niklas Luhmann (Reference Luhmann2004) observed that syncretic judgments based on legal and extralegal norms generated uncertainty and complexity. He argued that judges overtime attempt to reduce complexity by using legal reasoning to transform extralegal norms into legal doctrines and principles (Luhmann Reference Luhmann2004; Van Krieken Reference Van Krieken2006). To reduce complexity, European (and North American) court systems developed legal reasoning to maintain the fiction that law functions in a special decision-making arena that is isolated from social and political influence (Garth and Sterling Reference Garth and Sterling1998; Teubner Reference Teubner, Priban and Nelken2001). Luhmann’s theorizing explains the recent turn away from syncretic decision making by Vietnamese judges. Although our study shows that Vietnamese judges frequently base decisions on two schemes of intelligibility—a binary lawful/unlawful logic and extralegal norms—they used structural coupling to connect the schemes of intelligibility. This reasoning process enabled judges to minimize uncertainty and complexity by transforming extralegal norms and policies into a binary lawful/unlawful logic.

Legal reasoning and the rise of judicial authority

A central inquiry in our study is whether the recurrent use of principles-based legal reasoning during the post-judicial reform period constitutes a mere stylistic change or signals increasing judicial authority. To extend their authority, judges need discretionary power to intervene efficiently and decisively in a broad range of politically, socially, and economically meaningful disputes (Solomon Reference Solomon and James2015; Brinks and Blass Reference Brinks and Blass2017). Our findings show that judges routinely used principles-based legal reasoning to expand their authority over important civil, commercial, labor, and administrative issues. They demonstrated discretionary power by radically reinterpreting statutory provisions and creating new legal doctrines in areas where there is no governing law. For example, judges have limited civil rights to sue public institutions for personal injuries, while expanding the range of stakeholders who are entitled to benefit from matrimonial property. In commercial cases, judges have used legal reasoning to extend statutory protection against fraud and developed a legal principle that lifts the corporate veil to prevent fraud. These decisions demonstrate a willingness to use legal reasoning to project judicial power into important social and economic fields.

Courts also displayed judicial authority by creating equitable principles to redress social wrongs. Where laws produced harsh outcomes or failed to address social problems, courts were prepared to transform social norms relating to fairness and equity into legal principles. For example, courts created a legal principle based on filial piety to reward a daughter who cared for her parents and established a legal principle that distributed matrimonial property according to need. This use of extralegal norms resembles the way in which equity originally functioned in common law jurisdictions—to ameliorate harsh legal outcomes (Van Krieken Reference Van Krieken2006). Developing legally enforceable principles of equity is a significant expression of judicial authority in any legal system, more so one that has historically lacked a hermeneutic tradition that reconfigured political, economic, and moral norms into legal principles (Phạm Điềm Reference Phạm2013; Nicholson and Pham Lan Phuong Reference Nicholson and Phuong2018).

Although political leaders in authoritarian regimes want courts that can resolve social problems, they are uncomfortable with legal challenges to state interests (Ginsburg and Moustafa Reference Ginsburg and Moustafa2008; Solomon Reference Solomon and James2015). By using administrative law to check overreaching officials, Vietnamese courts are prepared to exercise judicial authority and challenge state interests. According to our case analysis, litigants in 25 percent of the administrative cases held officials accountable (Table 1). While still modest, the chance of success has significantly improved from the pre-judicial reform period (Lê Thị Hoàng Thành 2006; Kaneko Reference Kaneko2009–10). Although many successful actions challenged routine administrative powers, such as traffic regulation and business licensing, some cases opposed important administrative policies. Judges in these hard cases developed legal principles that overturned taxation policies and eminent domain powers. They also ruled against state authorities in commercial disputes with private enterprises. Even in politically sensitive cases, some judges were prepared to delay judicial decisions to prevent political authorities from violating legal rights. These are significant findings because courts in authoritarian polities are usually the last state institution to gain power over administrative agencies (Ginsburg and Moustafa Reference Ginsburg and Moustafa2008; Solomon Reference Solomon and James2015).

In contrast to administrative cases, courts have been reluctant to contest criminal prosecutions. Where they have demonstrated judicial authority is in developing political and social norms that justify mitigating criminal sentences.

Exploring the structural limits of judicial authority

So far, the discussion has examined how epistemic assumptions inform the way in which judges conceptualize and exercise judicial authority. To understand the limits to judicial authority, it is also instructive to consider structural constraints over judicial powers (Ginsburg and Moustafa Reference Ginsburg and Moustafa2008). Many of the top-down instrumental controls over the judiciary that developed during the pre-judicial reform period have endured into the post-judicial reform period (Phạm Điềm Reference Phạm2013). For example, judges are still prevented from reviewing the constitutionality of legislation and executive action (Pham Duy Nghia and Do Hai Ha Reference Pham Duy and Ha2018). In addition, party leaders continue to dictate outcomes in politically sensitive cases (Nicholson and Pham Lan Phuong Reference Nicholson and Phuong2018; Nguyen Reference Nguyen2019). In less sensitive cases, party leaders aim to control and standardize judicial outcomes through instructions issued by the Supreme People’s Court, such as decisions, official letters, annual reports, and monthly online meetings (Interviews J9 and J10; also see Lê Văn Sua 2020). Between 1986 and 2024, the Supreme People’s Court promulgated 255 decisions and 427 official letters.Footnote ³⁴ Suggesting increasing attempts to impose top-down controls, more than half of these rulings were issued following the passage of Law No. 62/2014/QH13 on the Organization of People’s Courts.Footnote ³⁵

Our findings show that judges actively critique and selectively apply top-down instructions (Interviews J4, J5, and J10). As a District Court judge observed, “[t]here are many professional guidance documents from the Supreme Court, however, most have a general content and therefore are not suitable for deciding particular cases” (Interview J19). The judge then went on to query the relevance of top-down controls: “Recently, Judge N has also written a lot and looked directly at the shortcomings of the Supreme Court. In the Supreme Court there are many people sitting in cold rooms who give very stupid instructions and Judge N pointed directly at the problems and ‘declared war’ [tuyên bố chiến tranh] on central instructions.”

Further suggesting resistance to top-down direction, judges rarely apply case law issued by the Supreme People’s Court. This initiative was introduced in 2017 to standardize and control judicial outcomes (Lê Văn Sua 2020; Nguyễn Anh Tuấn 2023). Only four of the 186 cases analyzed in Table 1 mentioned case law, and just one decision incorporated case law into the reasoning process. Reflecting a consensus among the judiciary, a District Court judge explained, “[m]y colleagues and I rarely apply case law. Case law is rarely used because it does not provide anything new. It just applies existing statutory provisions and is not really necessary. If case law did not exist, judges could still resolve cases based on statutory laws” (Interview J21).

Although judges did not question the principle of party leadership, they believed that courts should exclusively decide cases through laws and legal principles. They reconciled these competing regulatory principles by saying that, if courts apply the law, they are following party leadership (Interviews J10, J16, J20, and J21). This is more than a rhetorical assertion. Judges in the post-judicial reform period are actively developing a body of doctrinal rules and legal principles independently from higher party authorities (Lê Văn Sua 2020).

Following the systematic publication of court decisions in 2017, judges now routinely consult written judgments in deciding cases (Interviews J4 and J6). In a representative response, a District Court judge observed: “When I encounter difficult or complicated cases, I will go to it [the Supreme Court Judgment Portal] to consult. I will see how others decide and see whether I can follow them” (Interview J10). In addition, judges are increasingly developing legal doctrines through discourse with other judges. As one District Court judge noted: “I often discuss case reasoning with judges in higher courts, who work in related fields and are prestigious within the profession” (Interview J12). More particularly, judges consult critiques published by senior judges about landmark judgments and Supreme People’s Court rulings. For example, after discussing various influential judicial writers, a District Court judge observed: “Judge N often writes in a way that presents different legal arguments about the same incident and then gives his opinion as to which arguments he supports and why. For example, he explains why the legal principles underlying Supreme Court guidance are often incorrect” (Interview J19).

For decades, judges have consulted commentaries that explained the purpose and intention of statutory law (Interviews J10 and J21; see also Lưu Tiến Dũng 2021). In a recent development, judges now regularly use bình luận khoa học (case law commentaries) to understand the legal principles informing judgments. Judges, academic lawyers, and legal practitioners, such as Lưu Tiến Dũng (2021), Đỗ Văn Đại (2020), and Đinh Văn Quế (2018), have written influential case commentaries that cover key jurisdictional areas (Interviews J10 and J21). All this suggests that judges are expanding their structural and epistemic authority. Structurally, judges are developing influential legal principles and doctrines in relative autonomy from higher authorities and are unafraid to critique and reject top-down instrumental controls (Interviews J9 and J10; see also Lê Văn Sua 2020). By developing a body of self-directed legal thought, the judiciary is signaling an intention to increase their authority.

From an epistemic perspective, judges are using legal reasoning to reframe their scope of action. Principles-based reasoning enables judges to gain epistemic distance from legislators and senior judicial agencies. For example, judges are questioning long-standing socialist tropes that expect them to reflexively apply top-down rules and instructions. As their epistemic horizons expand, judges are developing a hermeneutic scheme of intelligibility that gives them the autonomy to transpose extralegal norms into legal principles. Courts now regularly use a complex body of judge-made principles and doctrines to expand their authority over new social and economic problems.

Finally, if judges are to gain authority, they need the public to believe in their capacity to deliver socially meaningful judgments (Solomon Reference Solomon and James2015; Brinks and Blass Reference Brinks and Blass2017). There is a well-researched connection between public trust and the conferral of authority upon state actors, such as courts (Verhoest et al. Reference Verhoest, Maggetti, Guaschino and Wynen2025). Judges were mindful that their authority depends on decisions that reflect community expectations of justice (Interviews J10 and J17). As one District Court judge explained, “[o]f course we have to think about how to balance (hòa hợp) our judgments between what is legal and what is reasonable. The judgement must accord with public opinion, especially the views of the parties affected by disputes” (Interview J5).

A growing body of evidence suggests that public support for the courts is increasing. Quantitative surveys show that, during the post-judicial reform period, public trust in courts to resolve civil and commercial disputes has risen (Centre for Community Support and Development Studies, Real-Time Analytics, and United Nations Development Programme 2024). Reflecting this trend, litigation rates are increasing, especially in civil and administrative jurisdictions.Footnote ³⁶ Public trust in courts is partially attributable to streamlined litigation procedures (Hoàng Thi Bích Ngọc 2019) and more litigation lawyers (Nicholson and Hai Ha Do Reference Nicholson, Do, Abel, Sommerlad, Hammerslev and Schultz2020). But, importantly for our discussion, there is a growing public awareness that courts play a central role in resolving social and economic conflict (Centre for Community Support and Development Studies, Real-Time Analytics, and United Nations Development Programme 2024).