What is wrong with the functionalist approach used by French scholars in studying ‘điển’?

Abstract

Điển was a practice in ancient Vietnamese society that had counterparts across the Sinosphere. In the first part of this article, we study provisions on điển in ancient Vietnamese codes, together with relevant background such as Vietnamese jurisprudence and counterparts of điển. Then, we study điển in contractual practice by deconstructing legal descriptions into social behaviours to understand điển in everyday ancient Vietnamese practice and life. We argue that while ancient Vietnamese legislators did not define what điển was and what điển purported to be or to do, there was a range of uses of điển in reality, deriving from dynamic social needs and creative bargaining practice. In the second part of the article, we study French research on điển, comprising work by French academics and French-educated Vietnamese scholars. We argue that their analyses are problematic because they tried to fit điển into French paradigms despite the divergence of practice and the rich social meanings of điển. In the third part of the article, we argue that the problems with French scholarship can be understood (and thus sympathised with) in light of the need to compare across jurisdictions, with functionalism sometimes being inevitable. We call on functionalism to be reflexive and integrative to better serve comparative legal history.