|
||
| |
||
 Articles |
Legal News |
Thailand Lawyer |
Links |
Home |
| PHLIP VON MEHREN, J.D. |
TIM
SAWERS, J.D.
|
| MILBANK,TWEED,HADLEY
AND McCLOY WASHINGTON, D.C. |
HODGSON,
RUSS, ANDREWS, WOODS & GOODYEAR
BUFFALO, N.Y. |
ABSTRACT
Which echoing criticism of the dormant law and development movement, the authors suggest an analytical approach to revitalization of the energies behind the movement. Von Mehren and Sawers fault members of the law and development movement for failing to focus on a central tenet of its theoretical underpinnings: the causal interaction between law and development. If the movement is to continue in any form, explication of this central tenet is necessary.
The vehicle for explication is a case study. The authors outline the history of the development of land law in Thailand. The historical analysis proceeds from a conceptual basis which posits a causal relationship between law and development, Max Weber's famous typology of legal systems. The authors contrast the Weberian explanation of the evolution of Thai land law with alternative analyses based on theories of social change which see law as epiphenomenal-the Marxist and World System approaches.
The case study show legal changes facilitated (but in no sense caused) the emergence of commercialized agriculture in Thailand. The authors conclude that law serves as a reinforcing variable in the process of social change. Thus, with a central tenet intact, the way is open for recrudescence of the scholarly energy behind the law and development movement. Von Mehren and Sawers show that the proven explanatory power of Weber's theories merits more attention from scholars on this field.
In addition to an original history of Thai land law, this article includes original translations from the ancient Thai Law of the Three seals. The appendix comprises translations of sections from this important body of laws which are cited in the case history. These are the only translations into any language of the Law of the Three seals.
A version of this article has been published in the Harvard Law Review
CHAPTER I
Theoretical and Methodological Issues
I. INTRODUCTION
The law and development literature was already teetering on the edge of irrelevance when, more than a decade ago, Merryman and Burg raised fundamental and discouraging observations about it. Merryman criticized law and development practitioners on several scores: for failing to develop a paradigm to focus research on generally agreed upon questions and purposes, for neglecting to elucidate a theory of how law interacts with social change, and for ignoring the specific cultural background of "target" societies. His over-arching solution was to place law and development in the field of "comparative law and social change" in order to re-energize "efforts at theory-building that characterize the best aspects of the law and development movement."(1) Burg built on many of Merryman's criticisms, yet, at least in one respect, came to a fundamentally different conclusion.(2) He suggested that instead of using theoretical models as a starting point for analysis, a potentially more fruitful country-by-country case study approach should be adopted with the emphasis on "culturally specific phenomenon." Eventually, these studies, through an inductive process, might provide the basis for a general theory of law and development.
Both authors acknowledged that theory as well as case studies are necessary to propel the law and development moment forward, yet Merryman's emphasis on linking it to comparative law and social change makes more sense given both the availability of a rich source of sociological theory on social change and the difficulties that case-study authors within the movement seem to have when they focus solely on empirical historical data.(3)
A major problem with the work within the movement is that it fails to state explicitly the causal interaction between law and development. Few authors of case studies directly address this fundamental issue. Yet, if the law and development movement is to play an important role in the literature on social change, law needs to be envisioned as at least an important reinforcing variable in the process of social change. If law is merely a product of social change, the analysis of its development will at best yield a reflection of the underlying process of social change. Thus, the movement's revitalization depends partly on whether, and to what extent, law is conceptualized as an important variable in the process of social change.
We shall summarized three theoretical approaches to social change-Marxian, World Systems, and Weberian-which differ in their conceptualization of the interaction between social change and law. We shall apply only the Weberian perspective to the case study for the simple reason that, in our interpretation, it sees law as more important in the process of social change than do the other theories. The Marxian and World Systems are included to demonstrate their perspectives' conceptualization of law as relatively unimportant in process of social change, and to suggest plausible alternatives to the Weberian analysis.
Our central purpose throughout is to explain, through the application of a Weberian approach, the relationship between the adoption of the concept of title and the commercialization of agriculture in Thailand. Our objective is not to show that legalism was wholly responsible for, but rather that a close interrelationship exists between, the introduction and acceptance of title in Thailand and the commercialization of agriculture. We explain this process in terms of the development of a "formally rational" legal system in Thailand. Our basic thesis is that the development of legalism in general, and the specific conceptual innovation of title in particular, has had an important impact on the economic development of Thailand's agricultural sector. Title fostered capitalist development in agriculture by clarifying ownership rights in land and thereby creating a context in which capital could be invested into agricultural production at lower interest rates based on the debtor-mortgagor giving the lender-mortgagee a security interest in land. This displaced, in areas suitable for capitalist agriculture, the traditional system of land tenure which was characterized by considerable uncertainty and was associated with the khaifak mortgaging system inherently characterized by high interest rates.(4)
II. THE THEORIES
Many richly suggestive and heretofore apparently untapped theoretical propositions exist on the relationship between law and development. These propositions can serve to guide researchers in organizing facts into important case studies. The examination of theoretical concerns should take place in the context of applying a theoretical framework to a specific case study because historical data are ultimately the best test of a theory's propositions. This study will, thus, serve both to demonstrate and to refine specific theoretical propositions. Our goal in this section is to derive theoretical propositions from an interpretation of Weber on the relationship between law and capitalist development. These propositions will then be applied to the historical data in subsequent chapters.
A. The Weberian Approach
Weber's work is much more complicated then many analysts acknowledge. Both Trubek and Kronman portray Weber as a thinker, who at least on the subject of law, was fraught with internal contradictions and tensions.(5) As a result of these contradictions, interpretations of Weber are ironically, to use Trubek's description, "delphic."(6) At stake here is whether Weber can be construed as presenting a coherent theory on the interaction between law and society. We shall strive in this sub-section to show that a plausible interpretation of Weber does provide a solid theoretical framework for studying the interaction between law and society, although one which is historicist in the sense that the specific relationship varies from country to country.
Weber focused on the increasing rationalization and differentiation of various dimensions of society, including law, religion and the economy. The central question that animated all of his work was what were the unique factors in Europe, specifically Northern Europe, that accounted for the historically unprecedented development of capitalism in those societies.(7) In his examination of religion, he argued forcefully in The Protestant Ethic and the Spirit of Capitalism that culture, specifically religion, is an important independent variable in understanding the direction of social change. Thus, in England the development of a Protestant ethic, displacing Catholicism with its negative normative judgements concerning capital accumulation, facilitated the emergence of a spirit of capitalism, without which the technological innovations necessary for industrialization and capitalism would not have a developed as strongly as they did. His Rechtssoziologie (Sociology of Law) applies the same type of methodological approach.(8) He begins with the question of what is different about European law. He then asks what is the causal relationship between the particular features of Western law and the development of capitalism.(9) These features, and their impact on a society's development, become the basis for his explanation of the development of capitalism in Europe.
Endnotes:
(1) Merryman, "Comparative Law & Social Change", 25 Am. J. Comp. L. 457, 483 (1977).
(2) Burg, "Law and Development: A Review of the Literature & a Critique of 'Scholars in Self-Estrangement' ," 25 Am. J. Comp. Law, 492, 528-30 (1977).
(3) Our observation is based on an overall impression of case studies gained through the Merryman and Burg articles as well as the D.S. Lev article in the readings. See Lev, "Judicial Institutions and Legal Culture in Indonesia" in Culture and Politics in Indonesia 246 (F. Holt ed. 1972).
(4) See infra, pp. 40-41, for a full description of the khaifak system. Although we emphasize the Khaifak system in our discussion of traditional credit in rural Thailand, other mechanisms no doubt also existed.
(5) Trubek, "Reconstructing Max Weber's Sociology of Law" 37 Stanford Law Review 919, 935 (1985); A. Kronman, Max Weber 185 (Stanford Univ. Press 1983).