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|PHLIP VON MEHREN, J.D.||
TIM SAWERS, J.D.
HODGSON, RUSS, ANDREWS, WOODS & GOODYEAR
B. The Marxist Approach
Briefly stated, Marxian analysis of social change focuses on the "mode of production" in a society. The mode of production is comprised of (1) the "relations of production," i.e., the groups into which society is organized to produce goods and services, (2) the "forces of production," i.e., the technology used to produce goods and services, and (3) the "means of production," e.g. the land used for production. The dialectical evolution of the mode of production through various stages of history,(21) from primitive communism to capitalism, has had a dominant causal effect on the "superstructure," e.g., on institutions, ideas, and, most importantly for our purposes, on law. Writers have debated the extent to which Marx permitted super-structural factors to have a feedback relationship or effect on the development of the mode of production; but, in the last analysis, material factors are the independent variables that guide the course of history and social change.
Marx saw, at least in his earlier writings, the development of capitalism as unleashing historically progressive productive forces wherever it spread:
The bourgeoisie cannot exist without constantly revolutionizing the instruments of production and thereby the relations of production, and with them the whole relations of society ...Constant revolutionizing of production, uninterrupted disturbances of all social conditions, everlasting uncertainty, and agitation distinguish the bourgeois epoch from all earlier ones. The bourgeoisie...draw all, even the most barbarian nations into civilization. The cheap prices of its commodities are the heavy artillery with which it batters down all Chinese walls...It compels all nations, on pain of extinction, to adopt the bourgeois mode of production; it compels them to introduce what it calls civilization into their midst, to become bourgeois themselves. In a word, it creates a world after its own image.(22)
Marx thus saw capitalism forcing developing nations to follow or to converge on the model presented by European history.(23) Capitalism would be a dynamic, progressive force,(24) unleashing the productive capacities of developing countries and leading to a capitalist mode of production and to social organization reminiscent of European development.
Implicit in Marx's analysis of the effect of the spread of capitalism--and fundamental for our purposes--is the view that law, as a superstructural phenomenon, will also converge along models first created in Europe. In other words, all law will become "capitalist" as a bourgeois mode of production is introduced. How literally specific legal rules will correspond to the model is a difficult question. For this Marxian approach to have explanatory power for our purposes, a progressively growing similarity between European and Thai legal conceptions of title suffices. One would also expect convergence to occur in non-legal dimensions in society, e.g. politics. As compared to the Weberian approach, the traditional Marxist's perspective resolves Weber's agnosticism by emphasizing the imposition of the needs of the commercial classes on the legal system.
C. The World Systems Approach
A Neo-Marxist approach, World Systems, is propounded by A. Gunder Frank and I. Wallerstein.(25) This group fundamentally rejects Marx's view that capitalism would unleash productive forces in the developing world, leading to convergence between the developed and underdeveloped countries. They instead focus on the structural underdevelopment of the underdeveloped world caused by world capitalism, and the mechanisms by which developed nations expropriate an economic surplus from these societies. They view social change in developing countries--or peripheral countries, to use Frank's and Wallerstein's s jargon--as determined by the role which a country plays in the international division of labor. As Frank states, "Economic development and underdevelopment are the opposite face of the same coin."(26) The exploitation of resources and markets in the underdeveloped world, dating back to the Spanish colonization of America, and the transfer of this surplus to Europe, led to divergent paths of development for individual states within the capitalist world system. Thus social change occurs within a single unit, the world capitalist system, and leads to growth in the developed countries--the core--and to underdevelopment in the periphery.
These authors see the transfer of economic surplus as a function of the role played by specific nation states within the international division of labor. As Wallerstein explains, the hierarchy of occupational tasks characteristic of the world capitalist system allocates higher rewards to those nation states that carry out the most complex tasks.(27) Most importantly, this international division of labor is conceptualized as a whole; one element in the structure cannot exist without the other. Furthermore, these hierarchial relationships are ordered as a zero-sum game: development in one area of the hierarchy necessarily leads to underdevelopment in another area. Thus, the development of the center would not have been possible without the incorporation and underdevelopment of the Third World. Once placed--in the periphery either forcibly through colonization or passively through market demands--a country's role can change but only with difficulty; the status quo is self reinforcing through the exercise of individual state power on a global level and the process of unequal exchange.(28)
It is difficult to tease out the World System view of the role of law in social change because of the approach's somewhat confused meta-theoretical characteristics. Yet some general statements can be ventured. Unlike Marx, Wallerstein does not view capitalism as unleashing productive forces that lead inextricably to the emergence of free labor and the commercialization of land. His approach, unlike Marx's, would emphasize the structural constraints of Thailand's role in the international division of labor and that, through the process of unequal exchange, the Thai agricultural sector, however it was economically and legally organized, channeled economic surplus to the center through price terms favoring the center. Ultimately, Thai legal concepts, practices, and social change in general would be determined by Thailand's role in the international division of labor. Thus, Thai legal concepts would not necessarily converge on the Western model but would instead follow a Third World model.
Although quite popular during the mid-seventies to early eighties, methodological problems have plagued the world system or dependency analysis of development. None of the authors ever gave a clear definition of capitalism or provided a detailed historical case study of exactly how the surplus from the periphery is channeled to the center. As a result, the theory provided no specific propositions that could be tested in terms of empirical data in a case study approach.29 Frank, for example, speaks only of concentric circles of exploitation beginning with the peasant producers and the urban underemployed in the periphery and ultimately benefiting the capitalists at the center.
III. THE CASE STUDY
Our choice of legal concepts of title for study was influenced by several factors. Land is of fundamental importance in all societies, especially those attempting to develop economically. The changing legal definition of people's relationship to land was an important element of the European transition from feudalism to capitalism. Specifically, the development of a concept of individual title and the ability to transfer and mortgage land are a fundamental aspect of the commercialization of agriculture. Furthermore, the increasing realization that agricultural development must, to a certain extent, precede and support industrialization, requires a thorough understanding of the legal techniques that might support that process. Thailand is an appropriate case study for two basic reasons. The first is that the authors are both familar on a first-hand basis with the society. The second is that Thailand has not received detailed academic attention despite its on-going economic success.
The second chapter of the case study will outline the evolution of Thai notions of title. It will focus on the development of the Thai legal system from a "formally irrational" system--characterized by the King simply announcing the law--to a "formally rational" system. The third chapter will tentatively test our basic proposition that legalism did support economic development by importing a concept of title which facilitated the commercialization of agriculture. We shall show that title only displaced the traditional Thai notion of "ownership" in areas susceptible to commercialization. We then analyze the current pattern of land holdings, showing how a continuum exists from mere occupation of land to full title ownership. We then explain why the traditional credit mechanism associated with non-titled lands is a less efficient means to harness capital for agricultural development. We conclude with general remarks about the law and development movement as well as an assessment of our explanation of the case study as compared to both the Marxist and World System approaches.
(21) The Marxist dialectic, simply put, fundamentally rests on the notion that social development is compelled by contradictions, e.g. between capital and labor, within the given mode of production and that, over time, quantitative changes eventually become qualitative.
(22) K. Marx, "The Communist Manifesto" (New York 1964).
(23) Meyer et. al., "Convergence and Divergence in Development," 1 Annual Rev. of Soc. 222, 224-25 (1975).
(24) Marx used the term "progressive" in the sense of moving the dialectic to a new level, and ultimately closer to the achievement of a Communist society.
(25) Many analysts might object to labeling these authors as Neo-Marxist. Some would argue, for example, J. Womack, that neither Frank's nor Wallersteins works fall within the Marxist tradition. Indeed, one can argue that Frank and Wallerstein owe their intellectual debt to structuralist economists such as R. Prebisch and C. Furtado. While some important differences exists between these authors and Marxists, they do seem to us to share fundamental similarities in their treatment and focus on the disarticulation of class structures in the developing world, and the process of capitalist expropriation of surplus value by the developed countries. For a renowned critique of Frank from a Marxist perspective, see Laclau, "Feudalism and Capitalism in Latin America" 67 New Left Rev. 19 (1977). Laclau argues that Frank's emphasis on exchange is fundamentally non-Marxist.
(26) A.G. Frank, Capitalism and Underdevelopment in Latin America 9 (New York 1969).
(27) I. Wallerstein, The Modern World-System II 9 (Academic Press 1980).
(28) I. Wallerstein, The Modern World-System I 350 (Academic Press 1974).