Law and Precariousness in an Authoritarian State: The Case of Illegal House Construction in Vietnam

• Published date: 01 April 2020
• DOI: http://doi.org/10.1111/lapo.12143
• Author: Tu Phuong Nguyen
• Date: 01 April 2020

Law and Precariousness in an Authoritarian State:

The Case of Illegal House Construction in Vietnam

TU PHUONG NGUYEN

While sociolegal research in authoritarian regimes has examined the cultural and regula-

tory factors accounting for why and how people bypass, manipulate, or resist the law, little

attention has been paid to an important double-edged effect of law in legitimating and sanc-

tioning subversive or illegal behavior. Through an examination of illegal house construction

in peri-urban Vietnam, this study fills this gap by drawing attention to the relationship

between law and precariousness. Precariousness influences individuals’ perceptions of and

behavior toward the law; at the same time, however, law creates and reinforces precarious-

ness, a condition of vulnerability and uncertainty subject to the local state’s discretion and

compassion.

I. INTRODUCTION

We are poor citizens using our own money to buy land and build our houses. ...Ilived in

my house for almost a year, then the [local] authority came down and smashed it, saying

that I had violated the law by having it built illegally. I was exhausted, begging the author-

ity, but to no use. The state is making our life miserable.

Such was the emotional, distressing account from an elderly woman I met in District

9, HồChı

´Minh City (HCMC), whose house had been destroyed by local authorities

due to its illegal construction. Illegal construction, that is, house building in land areas

not officially designated for residential purposes, is a prevalent practice among local resi-

dents in peri-urban suburbs in the city. In Vietnam, land is collectively owned by the

state. People are granted land use rights, but the exercise of these rights must adhere to

the designation of land use authorized by the local governments. Any construction activ-

ities, by law, must be registered with the local authority to ensure that they take place on

residential land and comply with other safety and local construction regulations. Find-

ing that the laws regulating land use and house construction were corrupt and discrimi-

natory toward low-income citizens, dozens of residents I met and interviewed in a

peri-urban district in HCMC contravened the law and had their houses built on an agri-

cultural land plot, apparently without any construction permit. Despite managing to

This research is funded by the Griffith University Postdoctoral Fellowship Scheme. I would like to thank

David Engel, Kanishka Jayasuriya, and two anonymous reviewers for their insightful comments on previous

versions of the article.

Address correspondence to: Tu Phuong Nguyen, Centre for Governance and Public Policy, Griffith Univer-

sity, Nathan, Queensland 4111, Australia. Email: tu.nguyen@griffith.edu.au.

LAW & POLICY, Vol. 42, No. 2, April 2020

©2020 The Author.

Law & Policy ©2020 University of Denver and Wiley Periodicals LLC.

doi: 10.1111/lapo.12143

ISSN 0265-8240

fulfill their needs, some of the residents later had their houses destroyed by the local

authority due to their violation of construction law, while some others are living in

limbo, anxious about their plight in the event that a similar punitive measure is enforced.

How can we make sense of these residents’ violation of the law and the risk they run of

ending up in such disastrous and vulnerable situations?

Conventional scholarship on law and social life in authoritarian and transitional

legal regimes has covered a wide range of strategies and tactics whereby people avoid,

contravene, or manipulate the law in their everyday lives in a similar fashion to the

practice mentioned above. This behavior demonstrates the lack of moral legitimacy of

statelawsinrelationtowidelyheldnorms, values, and practices, and exposes the

state’s regulatory failure in achieving certain social and political objectives. In the case

of illegal construction in Vietnam, these interpretations nonetheless do not capture an

important double-edged effect of law, namely, the role that law plays in both legitimat-

ing and sanctioning such activity. As this study will demonstrate, illegal construction

by low-income residents occurs in a vague area of law enforcement and ends up trig-

gering punitive measures that make life worse rather than better for residents. Law

ultimately becomes a tool of submission, one that sustains or exacerbates the precari-

ousness experienced by the people who attempt to manipulate or resist the law in the

first place.

This article therefore shifts the analytical focus of everyday resistance away from peo-

ple’s agency to avoid, contravene, or manipulate the law to an examination of law’s

power of submission. It argues that everyday resistance to the law has to be understood

in terms of the relationship between law and precariousness—that is, the general condi-

tion and experience of vulnerability and uncertainty in one’s life. Precariousness influ-

ences the way people perceive, engage with, or resist the law; at the same time, however,

law creates and reinforces precariousness. This mutually reinforcing dynamic between

law and precariousness highlights the power of submission that law can bring to bear on

people’s lives and the moral tension between law and people’s own understandings and

ideals of fairness. This study builds upon and enhances insights from sociolegal studies

and regulatory perspectives by introducing the notion of precariousness as a way of

comprehending the nature and implications of everyday use of or resistance to the law,

especially among marginalized and disadvantaged people. It also advances our under-

standing of precariousness beyond a political economy focus by drawing attention to

the significant and varied ways in which law contributes to generating or reproducing

experiences of precariousness among people who are forced to live under such

conditions.

The next section of this article provides a critical analysis of existing studies of law

and society in authoritarian regimes, especially focusing on those that examine the legiti-

macy and relevance of law in commonplace settings. Following this is a theoretical dis-

cussion of the idea of precariousness and how this can be applied to understanding law

and social life in authoritarian states. The rest of the article investigates the case of ille-

gal house construction in Vietnam in the midst of legal reform and rapid urbanization.

II. UNDERSTANDING EVERYDAY POLITICS AND LAW IN AUTHORITARIAN REGIMES

Existing studies of the role and operation of law in authoritarian regimes have shed light

on varying facets of law, both as an instrument of the state in its consolidation of legiti-

macy and a space and object of sociopolitical contestation. In authoritarian regimes that

claim to rule by the law, the operation of legal institutions is closely tied to the state’s

©2020 The Author.

Law & Policy ©2020 University of Denver and Wiley Periodicals LLC.

Nguyen LAW AND PRECARIOUSNESS 187