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| 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. |
2. Sukhothai period (about 1250-1350)
The ancient Thai legal system traditionally began to take shape during the Sukhothai period. When the Thais emerged into the Chao Phya River basin and began to control more land the ancient tradition of royal ownership of all the land came with them, but it began to change perforce. A famous stone inscription in the Bangkok National Museum traditionally accepted as being from the Sukhothai period gives the flavor of law during this era:
In the gateway of the palace a bell is hung; if anyone in the kingdom has some grievance or some matter that is ulcerating his entrails and troubling his mind, and wishes to lay it before the king, the way is easy: he has only to strike the bell hung there. Every time King Rama Khamheng hears this appeal, he interrogates the plaintiff about the matter and gives an entirely impartial decision.(16)
This can be seen as a public relations offering by a kingdom rich in land and starved for manpower. In order to continue to control the land the king had to attract more people to live on it and work it. A few lines further down on the stone inscription is the first inkling of Thai land law:
(the king) comes when he hears the bell and decides the case, so the people of Sukhothai praise him. They plant areca groves and betel groves all over Sukhothai; cocoanut groves and jackfruit groves are planted in abundance here, mango groves and tamarind groves are planted in abundance. Anyone who plants them gets them for himself and keeps them.(17)
Thus, although there is really very little material on the Sukhothai period, we may infer that during that time the king claimed ownership of all the land, but commoners were given or allowed to use land rather freely and the product of the land was not taxed. The fledgling kingdom was ruled with a light hand by a paternalistic monarch who controlled more land than he had subjects to farm it.
3. Ayudhya and early Bangkok periods (about 1350-1855)(18)
As we have noted, the Burmese sacked Ayudhya destroying almost all legal materials in 1767. King Phra Phuttahyotfa (Rama I, 1782-1809), the founder of the present (Chakri) dynasty, decided to compile all the traditional law and remove from it aberrations such as unfair or inappropriate king-made law (rachasat). This task was completed in 1805 and the resulting code is commonly known as the Law of the Three Seals.(19) This code, because it is virtually the only extant evidence of classical Thai law,(20) represents the ancient traditional law of Thailand.(21) There is no translation into any language except modern Thai.
Because there is almost no primary source material except this 1805 recension, it is difficult to give a chronological picture of the gradual accretion of farmers' rights in land. We offer our interpretation based upon what we find in the Law of the Three Seals. See the appendix of this paper for our translations of the provisions of the Law of the Three Seals cited below.
The ancient Thai tradition of royal ownership of all land had been relaxed and was perhaps on its way to extinction during the Sukhothai period because the Thais were holding more land and suffered chronic shortages of manpower. The adoption of the Hindu theory of kingship during the early Ayudhya period prevented any change in the actual law because the notion of royal ownership of all land comported so well with the idea of the king as god. It was seen as a logical corollary of divinity that the king should own the source of all sustenance. Thus ironically the adoption of a "substantively rational" system of law based on thammasat (natural law) by the Thai kings perhaps forestalled legal recognition of farmers' ownership rights in land.
But the economic forces present in Sukhothai were also at work in Ayuthya. The area controlled by Thai kings grew, and manpower was always in short supply. The tension created by Thai kings' need to attract more people to farm the land they controlled while maintaining the theoretical ownership of all land is readily apparent in the Law of the Three Seals. While section 52(22) of the miscellaneous book declared that all land belonged to the king and section 54(23) prohibited the buying and selling of land, section 54 also required officials to encourage people to farm the land and granted a one-year tax holiday for newly cleared lands.
Given the policy of encouraging the people to clear and settle more land implicit in section 54, it seems inevitable that the prohibition of the sale of land would lose its potency. Thus section 61(24) limits to ten years the seller's right of redemption in a sale of land with the right of redemption (khaifak)(25) and section 62(26) prohibits the sale of land by an unlawful occupier. We may infer from these sections that borrowing against and selling land were common practices during the Ayudhya period. Indeed, it is difficult to understand why section 54's prohibition on the sale of land was retained through the years and in the 1805 recension if not in order to keep the law in harmony with the prevailing theory of kingship; many sections of the miscellaneous laws book(27) seem to assume regular buying and selling of land.
Further indications of farmers' gradually increasing rights in the land include punishments stipulated in the Law of the Three Seals for occupation of another 's land (miscellaneous laws book §§ 34-41)(28) and for clearing and farming wild land without first notifying the proper authority (crimes against government book § 47).(29) It seems likely that the purpose of the latter provision was to facilitate collection of land taxes.
Endnotes:
(16) Engel, David M. (1975) Law and Kingship in Thailand during the Reign of King Chulalongkorn 2, citing Coedes, G. (1969) The Making of South East Asia 145, translated from the French by H.M. Wright. [But see also The Ram Khamhaeng Controversy, J.R. Chamberlain, ed., Bangkok: The Siam Society, 1991, for modern comments challenging the traditional opinion regarding this stone inscription.--Ed.]
(17) Griswold, A.B. and Prasert na Nagara (1971) "The Inscription of King Rama Gamhen of Sukhodaya (1292 A.D.)," Journal of the Siam Society, 59 (2): 208. [But see addendum to note 16.-Ed.]
(18) We exclude from this paper any discussion of sakdina, the ancient Thai social system which some authorities contend was based on land, not only for purposes of brevity but also because of the current state of scholarship on sakdina. There are such disparate interpretations and so much work still to be done on sakdina that we feel incapable of drawing any conclusions at this point. See Lysa, Hong (1984) Thailand in the Nineteenth Century for a good account of the current state of scholarship on sakdina.
(19) This name comes from the three official seals on the original copies. The standard version of this recension, the version we have used, is Lingat, Robert, ed., (1938) Pramuan kotmai rachakan thi 1 julasakarat 1166 (The Siamese Code of 1166 C.S.) 3 volumes. C.S. is an old Burmese dynastic dating system.
(20) Hooker, M.B. (1978) "The Indian-Derived Law Texts of Southeast Asia," The Journal of Asian Studies, 37 (2): 206.
(21) But cf. Lingat, Robert (1929) "Note sur la Revision des Lois Siamoises en 1805," Journal of the Siam Society, 23 (1): 22 (Law of the Three Seals, strictly speaking, can only be considered to be the law in force at the time of the recension [1805]).
(22) Lingat, Robert, ed., (1938) Pramuan kotmai rachakan thi 1 julasakarat 1166 (The Siamese Code of 1166 C.S.) vol. 2 pp. 215-6.
(25) That is, ten years after the sale with right of redemption, farmers who sold their land with a right of redemption (khaifak) would have to leave the land and the moneylender could then sell or rent the cleared and arable land to another farmer. See section B (Modem Law), subsection 1 (19th Century) of this chapter for a fuller discussion of this Chinese financing instrument (khaifak in Thai) as it was applied in the Thai context.
(26) Lingat, Robert, ed., (1938) Pramuan kotmai rachakan thi 1 julasakarat 1166 (The Siamese Code of 1166 C.S.) vol. 2 pg. 220.
(27) See, e.g., §§ 66, 67, 69 and 70. Id. 2213. These sections all open with the phrase "someone who buys land." They deal with situations where two parties each claim the same land.