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|PHLIP VON MEHREN, J.D.||
TIM SAWERS, J.D.
HODGSON, RUSS, ANDREWS, WOODS & GOODYEAR
Included in Chulalongkorn' s Chakri Reformation were many proclamations (prakat) and royal decrees (phraratchabanyat) designed to clarify rights to land in an ad hoc manner. A series of two proclamations and a decree spanning the last third of the nineteenth century shows the Thai legal system grappling with the problem of rights in land. The rising price of rice and land gave farmers who had sold their land with the right of redemption great incentive to redeem at the original price. Farmers who had sold their land outright also attempted to redeem at the original price. King Mongkut's Prakat khai suan khai na fak kae kan(46) (Proclamation on sale and khaifak of paddy and garden), acknowledged in 1866 the increased usage of land and the consequent rise in the cost of land. It went on to declare that in disputes regarding purchase, mortgage and purchase with right of redemption (khaifak), holders of certain land tax documents (tra daeng) would be deemed by the courts to have ownership rights in the land.
This did not solve the problem; it substituted possession of the tax documents for possession of the land as the determinative factor. So lenders took the tax documents as collateral. King Chulalongkorn' s Phraratchabanyat kan khaifak lae kan jamnam thi din(47) (Royal decree on the sale with right of redemption and the mortgaging of land, 1896) addressed problems arising with the 1866 proclamation when the mortgagor or the landowner who sold land with a right of redemption (khaifak) had a contract attesting to his right of redemption but had given the tax document to his creditor as security. Many cases were backed up in the legal system because officials did not know how to resolve this legal conflict. The contracts indicated a right of redemption in the debtor, but the earlier proclamation dictated that the holder of the documents, the creditor in this situation, owned the land. The 1896 royal decree announced that King Mongkut's proclamation was out of step with the times; since contracts were now commonly made in the presence of government officials the old proclamation was eliminated and deciding officials were instructed to resolve such cases on the basis of current law, including contract law. In 1899 Prakat reuang jamnam lae khaifak thi din(48) (Proclamation concerning the mortagaging and the sale with right of redemption of land) proclaimed that in these land transactions a written contract was necessary. The purchaser (in a khaifak transaction) or mortgagee had no legal remedy unless there was a written contract made in the presence of a government official. With such a contract the vendor who succeeded in redeeming his land freed himself both of the obligation to give a portion of his crop to the money-lender and from the threat that after the ten year statutory period the money lender would claim possession and sell or rent the land to another party. By giving legal effect to a contract made in the presence of a government official these laws increased the security of the khaifak credit mechanism.
Thus by the end of the nineteenth century the Thai legal system had granted the farmer virtually complete rights in his land. Through the implementation of contract law(49) it had developed a partial response to the "use it or lose it" rule. That is, the traditional legal system generated a solution (contract law or, in the absence of a written contract, the land tax document) to instances where the owner (the purchaser in a khaifak transaction or the mortgagee) of the land was not actually in possession and control of the land. Money-lenders were not in possession of the land they "owned," but the legal system had evolved in such a way as to protect them; they didn't "use it," but nor did they "lose it."(50) The only remaining hurdle for the Thai legal system's land law was abandonment of land.
This customary system of land tenure had evolved over the centuries to a point where it functioned well within the traditional Thai economic setting and also offered a modicum of social justice to the farmer. Farmers could take up as much vacant land as they could cultivate. The law provided sufficient security for traditional informal methods of borrowing against land. We view Thai land law at the end of the nineteenth century as having evolved to a point of near perfection within Thailand's "substantively rational" legal system. Any further significant "improvement" would require abstraction possible only within a "formally rational system." One might ask at this point, why did the Thai legal system adopt a Western system of title in land at the beginning of the twentieth century?
2. Western system of title
In 1901 King Chulalongkorn separated the concept of ownership from actual occupancy and use of the land(51). He made provisions for a cadastral survey, a Torrens registration system and title deeds giving full legal ownership rights to the person holding the title deed. It was assumed that in almost every case the head of the family that had been farming the land would get title to the land.
There are no source materials available in this country which shine any light on the question with which we concluded our discussion of late nineteenth century Thai land law: why did Thailand adopt a Western system of title in land? It is possible that the king and his advisors chose to adopt a Western system of land tenure in order to solve the traditional systems problem with abandonment of land (the "use it or lose it rule"). But this seems implausible: land was still plentiful and relatively inexpensive; any rational public policy would surely encourage the use of arable land.
A more likely explanation for the shift to a Western model views the land tenure law as simply swept away toward the new system along with most of traditional Thai law: all law had to be "modern." We know that King Chulalongkorn himself thought that by "adopting certain practices of the prosperous and developed countries, ...Thailand itself could become prosperous and developed."(52) We also know that the great king saw adoption of a Westernized legal system as a means of fending off colonization and as the only way to rid his country of extraterritoriality. Perhaps Chulalongkorn decided to adopt a Western system of title as part of his complete overhaul of the Thai legal system, hoping at the same time that the Western system would facilitate greater agricultural development and better the lot of his subjects.
It is also possible that Thailand adopted a Western system of title in order to accommodate a new species of rural land owner. As rice farming became profitable, businessmen and royalty from Bangkok began to purchase land and engage in the business of rice farming. Of course these members of the urban elite did not live on the land; to them rice farming was not a traditional way of life, but a source of income. Because they were foreigners in rural Thailand, because they did not live on or even near the land and because they wanted bigger loans and lower interest rates than the traditional methods of securing debt with land provided, the urban elite demanded a land law which provided as much security of tenure as possible.
Western systems separate ownership rights from possession and control of the land. But because of this abstraction they also take measures aimed at assuring full security of tenure to the land owner. The land is surveyed and accurately described in words on a document symbolizing the land. The owner of the land is named on the document and a copy of it is recorded or registered with a government agency. Perhaps because of the new, politically influential land owners' desire for increased security of tenure, Thailand adopted a Western system of title in land.
Regardless of the reason for Thailand's adoption of a Western system, we believe that the extent of the cadastral survey, and thus the Western system of title in land, correlates very closely in rural Thailand to the spread of commercial agriculture. We also believe that, like the perception of the king as a divinity, the old natural law land system is alive in areas of traditional self sufficient agriculture.
(46) 7 PKPS 226.
(47) 15 PKPS 267.
(48) 17 PKPS 199.
(49) We leave for another paper the question of the extent of the influence of modern western contract law on Thai law at the end of the 19th century. While it is clear that later 19th century western legal notions of contract as king influenced Chulalongkorn' s decision to instruct officials to decide the cases mentioned with reference to the law of contract (rather than follow the old proclamation), it is not necessary here to delineate the form of contract law applied to these cases.
(50) Of course an economist would say that the money lenders certainly were "using" the land. Our rather simple point here is that the "substantively rational" legal system evolved to a point of near perfection within the traditional Thai economy and did develop a partial solution to the "use it or lose it" problem by recognizing limited ownership rights in those not actually in possession of the land.
(51) Prakat awk chanot thi din (Proclamation on the issuance of land title deeds) 18 PKPS 84. See Sharp, Lauriston and Hanks, Lucien M. (1978) Bang Chan: Social History of a Rural Community in Thailand 129 for an anecdote showing the effect of the new law on villagers near Bangkok.
(52) Engel, David M. (1975) Law and Kingship in Thailand during the Reign of King Chulalongkorn 16. Chulalongkom was not alone among Thai leaders in his belief that law could lead development. Prime Minister Field Marshal Phibun Songkhram, apparently in hopes of modernizing Thailand, passed a law during the 1940s forcing women to wear hats while on the street and forbidding anyone not wearing coat, hat and shoes from entering a building. MacDonald, Alexander (1950) Bangkok Editor 84. See also Sharp, Lauriston and Hanks, Lucien M. (1978) Bang Chan: Social History of a Rural Community in Thailand 156 (anecdote about the effect of this law on villagers' lives).