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|PHLIP VON MEHREN, J.D.||
TIM SAWERS, J.D.
HODGSON, RUSS, ANDREWS, WOODS & GOODYEAR
I. BACKGROUND: THAI HISTORY AND THE THAI LEGAL SYSTEM
Thai history is usually divided into three epochs named for the capital at the time. The chronological progression from the Sukhothai period (about 1250 to 1350) through the Ayudhya period (about 1350 to 1767) to the Bangkok period (1767 to present) also reflects a continuation in the Chao Phya River basin of the Thais' generally southward movement from their original home traditionally identified as in Yunnan.(1) When the Burmese sacked Ayudhya in 1767 they destroyed ninety percent of the code of laws then in use.(2) So there is almost no primary source material prior to the Bangkok period. For our purposes in this chapter we divide Thai history into the modern and the ancient periods using a traditional line of demarcation between these two periods, the Anglo-Siamese Treaty of 1855. In Weberian terms this chapter depicts the shift from a "substantively irrational" system during the Sukhothai period to a "substantively rational" system during the Ayudhya and early Bangkok periods to a "formally rational" system in the modern era.
The Thai legal system has historically revolved around the monarchy. The traditionally accepted Thai view of the monarchy during the Sukhothai period, when the population and the area of the kingdom were both relatively small, was of a familial, patriarchal king.(3) This changed as the Thai capital moved south and Thai kings controlled more land and people. The Thai view of kingship which was adopted during the Ayudhya period retains astonishing power even today, as Thailand prepares to join the ranks of developed countries.
In Ayudhya Thai thought on kingship was influenced by the Mon, an indigenous people, and the Khmer, against whom the Thai frequently waged war. The legal systems of both the Mon and the Khmer had been developed from the Hindu dharma-sastras. The Thai thammasat(4) is a Buddhist interpretation of the dharma-sastras as the Thais received them from the Mon and the Khmer.(5) The thammasat was central to the Thai legal system until the reforms of King Chulalongkorn in the late 19th and early 20th centuries. Its view of the king as a righteous god who embodies the law continues to influence the common Thai's concept of kingship.
The thammasat was considered sacred or natural law. It was deemed to be the supreme expression of truth and equity as revealed by a supernatural source; its provisions were sacred and eternal.(6) Thai kings, although regarded as divine, could not make a law which was not in harmony with the thammasat. Laws made by kings (rachasat) tended to be considered temporary reflections of the power of the king, while the natural law of the thammasat was regarded as eternal.(7) The thammasat "changed the basis of political leadership from an intimate and informal paternalism to an idealized monarch who was expected to rule his subjects with justice and moderation."(8)
Although common Thai people continue to think of the monarch as a god-king, the legal system no longer revolves around the king. Beginning with the reforms of King Chulalongkorn the Great (Rama V, 1868-1910), Thai law has moved increasingly towards Western models. The first small law school was started in 1897(9) and there are now four universities granting law degrees: Chulalongkorn University, Thammasat University, Ramkhamheng University and Sukhothai University. In 1901 King Chulalongkom introduced a Western system of title in land.(10) Civil and Criminal codes based on continental European models were adopted early in this century. The demise of the absolute monarchy in 1932 seems to have confirmed the inevitability of this movement toward a Western system of law.
II. HISTORY OF THAI LAND LAW
A. Ancient law
1. Before Sukhothai
As was the case in most Asian societies, religious and cultural influences regulated the relationship between ancient Thai rulers and the people over whom they reigned. Before the Sukhothai period (roughly 1250-1350 A.D.) the Thai generated no form of legalism comparable to that of Ch'in Shih Huang-ti, who,developed a detailed administrative system, with provisions for enforcement, during the Ch'in dynasty (255-206 B.C.).(11)
Virapol Sarasin states that in their original home in Yunnan the Thais were constantly at war with the Mongols.(12) Traditional opinion holds that war was a central factor in the Thais' migration south and, once in present day Thailand, they engaged in frequent wars with Pagan to the west and Angkor to the east. The Thai tradition that all land belongs to the leader (later the king) developed over the centuries as the Thais moved south in relatively small bands of people clustered about a leader or chief.(13)
Robert Lingat, the foremost scholar of Thai legal history, distinguishes the early Thai tradition of royal ownership of all land from theoretically similar legal traditions in Europe and Asia. He compares ancient Chinese law, Islamic law and European law of the Middle Ages. All of the land theoretically belonged to the monarch (or the imam) in these systems, but the actual practice did not reflect this theory. Lingat gives two reasons for this gap, one theoretical and the other practical. First, there had not yet developed a distinction between control (in the hands of the husband, the father, the monarch etc.) and private rights. So, because the husband, the father and the monarch had control, they were theoretically the holders of private rights as well. It was impractical to implement the theory that the monarch (or imam) had ownership rights in all the land in these societies because the land area "owned" by the monarchs was too large.(14)
The ancient Thais apparently had a very strong tradition of rights in the land residing in the leader or monarch.(15) This, along with the small area of land actually under the control of any one leader or monarch prior to the Thais' movement into the Chao Phya River basin, allowed them to put into actual practice what was only theory elsewhere. The king or tribal leader, as owner of all the land, awarded land to his followers according to how they had served him.
(1) Chinese records from the sixth century B.C. contain the first mention of the Thais. From that time on frequent references to the Thais as the "barbarians" south of the Yangtse are found. Hall, D.G.E. (1977) A History of South-East Asia 169.
(2) Ishii, Yoneo (1986) "The Thai Thammasat" in Hooker, M.B., ed., (1986-88) The Laws of South-East Asia vol. 1 pg. 143.
(3) Engel, David M. (1975) Law and Kingship in Thailand during the Reign of King Chulalongkorn 1.
(4) There is no satisfactory system for transliteration of Thai to English. In transliterating we have attempted to approximate, using the roman alphabet, the sound (as opposed to the spelling) of the Thai word. We have indicated aspiration of dentals, velars, palatals and bilabials by use of the English letter "h." We have abandoned this admittedly loose system where tradition or a cited author's transliteration of his own name dictates: Chulalongkorn would be "Julalongkawn" in our system; Viraphol Sarasin would be "Wiraphon Sarasin."
(5) See Ishii, Yoneo (1986) "The Thai Thammasat" in Hooker, M.B., ed., (1986-88) The Laws of South-East Asia vol. 1 pp. 143-203 for more information about the thammasat.
(6) Thanin Kraivichien (1965) "The Legal System," Thailand 1964 (official government publication) 2. Quoted in Darling, Frank C. (1970) "The Evolution of Law in Thailand," Review of Politics, 32 (2): 199. Thanin served as prime minister of Thailand 1976-7 and is a justice of the Dika (supreme court). Thai authors are cited by their given names in this paper; all others are cited by their surnames.
(7) Engel, David M. (1975) Law and Kingship in Thailand during the Reign of King Chulalongkorn 6.
(8) Darling, Frank C. (1970) "The Evolution of Law in Thailand," Review of Politics, 32 (2): 199.
(9) Id. at 217.
(10) We define a western system of title in land as a system of title in land which includes recordation or registration at a government office and separates possession and control of the land from ownership rights in the land. An accurate survey is a necessary concomitant of this type of title system. We have been unable to determine what systems of title in land Chulalongkorn studied before enacting Thailand's westernized system.
(11) Darling, Frank C. (1970) "The Evolution of Law in Thailand," Review of Politics, 32 (2): 197.
(12) Viraphol Sarasin (1977) "Law in Traditional Siam and China: a Comparative Study," Journal of the Siam Society, 65 (1): 83.
(13) Lingat, Robert (1935-40) Prawatsat kotmai thai (History of Thai Laws) vol. 2 pp. 299-305.
(14) Id. 309-10.
(15) Id. 299-305.