REVITALIZING
THE LAW AND DEVELOPMENT MOVEMENT
A
Case Study on Land Law In Thailand
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. |
APPENDIX
INTRODUCTION
To
the best of our knowledge, Siam's 1805 recension, the Law of the Three
Seals, has never been translated into any language. We offer below our
translations of the 1805 recension provisions cited in chapter two of
this work. In preparing these translations we have used Robert Lingat's
definitive edition of the Law of the Three Seals published by Thammasat
University in the late 1930s. Titled Pramuan kotmai rachakan thi 1
julasakarat 1166 (The Siamese Code of 1166 C.S.(1)),
this work, now out of publication, contains the original fortyone Thai-style
books in three volumes. Lingat arranged the order in which the original
forty-one volumes are presented and renumbered the provisions to facilitate
scholarly research. The arabic numerals in the translations are Lingat's;
the original Thai numeration is indicated in brackets.
We
have translated sixteen provisions from the miscellaneous book of the
Law of the Three Seals and arranged them in numerical order following
Lingat's numeration. A seventeenth and final provision, from the crimes
against government book of the Law of the Three Seals, is added at the
end. Under each of Lingat's arabic numerals is first a close translation
of the original and then, in boldface type, a more fluent translation.
We have attempted to keep comments, which are interspersed among the translations,
and footnotes to a minimum.
The
close translations are as accurate as possible. But it is often difficult
to convey in English the ambiguity of the original Thai; to do so accurately
is to risk incoherence in the English translation. Pronouns, number and
articles contribute heavily to this ambiguity. In these provisions the
antecedent of a pronoun is rarely self-evident and the same pronoun may
be second or third person, singular or plural, depending upon the context.
Classifiers are used to indicate (sometimes rather precisely) number in
Thai. But without these classifiers, which are scarce in the provisions
translated, the reader is left to infer from the context whether a noun
is singular or plural. Furthermore, Thai has no equivalent of the English
articles "a," "an" and "the," so inference
from the context is that much more difficult.
We
have tried to address the problem presented by the ambiguity of the original
Thai by liberal use of parentheses. Inferences made in translation are
in parentheses in the close translations. While most of these inferences
are routine and present little danger of misinterpretation, many of them
could be challenged. Thus we ask that the reader first read the close
interpretation omitting words within parentheses and then read the entire
close interpretation ignoring the parentheses. In this way the reader
will get a feel for the style and ambiguity of this ancient law and see
clearly the inferential leaps made in translation.
Our
goal in offering the more fluent translation is to present to the reader
as succinctly as possible the meaning of the translated provision to a
contemporary lawyer. Thus in addition to involving further (and more questionable,
if one is concerned with the literal accuracy of the translation) inferences,
the fluent translations exclude information from the original which is
not relevant from the point of view of current law. By first reading the
close translation excluding the phrases in parentheses, then reading the
close translation including the phrases in parentheses and finally consulting
the fluent translation, lawyers and scholars will be able to form their
own opinions about the legitimacy of inferences made in translation. This
should give rise to many differences of opinion and, we hope, inspire
further research into Siam's Law of the Three Seals and the society which
generated it.
We
owe a great debt to Khun Jitraporn Leelawat for her gracious help and
guidance in the preparation of the translations that follow.
TRANSLATIONS
LAW OF THE 3 SEALS,
MISCELLANEOUS BOOK
34
[Thai
numeral 25]. One person is plowing paddy. One person challenges (him by)
plowing (the same paddy). If (the interloper) plows (the entire) field,
levy a fine of 330,000 cowrie shells. If (he) plows two furrows, levy
a fine of 110,000. If (he) plows three furrows, levy a fine of 220,000.
A fine will be
levied for plowing over again where another person is plowing.
35
[Thai
numeral 26]. (If) anyone intrudes with water buffalo (and) plows the rice
which you have just sown, levy a fine of 330,000.
A
fine will be levied for plowing under another person's newly sown rice.
36
[Thai
numeral 27]. (If) anyone intrudes with water buffalo (and) plows your
rice when it is a stalk (or) leaf, thammasat(2) says levy a fine of 440,000. If the rice is young,(3) levy a fine of 550,000; if the rice is ripe, levy a fine of 660,000. If
(he) plows as much as 1, 2, 3 rai(4) or more, levy a fine of 110,000 and have the wrongdoer prepare one pig,
one duck, one jar of liquor, candles, incense and other ceremonial accessories
to pay obeisance to the rice goddess in accordance with the tradition
of the community.
The
fine for plowing under another persons' rice varies according to how much
land is so plowed and the point in the growing cycle of the rice when
it is plowed under.
37
[Thai
numeral 28]. (If) anyone dares to plant rice in your paddy saying it is
his own paddy, levy a fine of 110,000.
A
fine will be levied for seizing and planting rice in another person's
paddy.
38
[Thai
numeral 29]. (You have) plowed the paddy (but) not yet sown the rice.
A person comes and plows (the same paddy) again. Whether (he) plows (the
same) furrow deeper or plows on either side (of the furrow), levy a fine
of 220,000 three times. Also fine (him) by reducing (his) rank once. If
there was no boundary marker, levy a fine of 33,000 three times.
A
fine will be levied for plowing over again where another person has plowed.
The fine will include a demotion in rank. But the fine will be reduced
if the land was not marked.
39
[Thai
numeral 30]. (There is) paddy which you have formerly worked. (Someone)
comes and challenges (you by) plowing (and) working your paddy. Thammasat says that person transgresses, levy a fine of 110,000.
A
fine will be levied for seizing and working land formerly worked by another
person.
40
[Thai
numeral 31]. (If) anyone dares to rake over(5) (the furrows) you plowed, fine (him) 3 times for a total of 220,000.
A
fine will be levied for filling back in the furrows plowed by another
person.
41
[Thai
numeral 32]. (If) anyone dares to pile up a mound of dirt (for) building
a but (and) putting up paddy dikes and takes your paddy as his own paddy, thammasat says levy a fine of 110,000.
A
fine will be levied for seizing and settling on the land of another person.
Comment
Sections
34-41 all deal with intentional invasions of another's land, but none
of these provisions says "don't invade or seize your neighbor's land."
In attempting to make these provisions meaningful for current lawyers
we have resorted, in §§ 37, 39 and 41, to the word "seize"
in the fluent translation. But these sections show clearly that what was
important in rural Thai society at that time was the labor already expended
or the crop, not the seizure of the land.
Note
the extensive articulation in these provisions. There are many different
provisions for actions which current law subsumes under the rubric trespass.
52(6)
The
land in the area around Bangkok and Ayuthya is the land of the king. Although
(the king) allows the populace, people who are tied to the land, to live
(on the land), the populace cannot own (it). There are disagreements about
this because the people are already living (on the land and) each has
his own house, his own garden. Then another person comes to live (on the
land). And (he) fences in, plants and builds on (the land). (The king)
gives (this) right to him.
Also,
if (that) person hasn't abandoned that land and he has fenced (it) in
as evidence (of his claim to the land), but he leaves, whether for business
or pleasure, and returns (intending) to enter and live (on the land),
give (the land) back to him to live on because he did not abandon that
land. If he abandons the land as long as 9 (or) 10 years, have the local
government arrange to give (the land to) those people who cannot find
any land to live on. Do not allow that land to be unoccupied.
Furthermore,
if (that person) planted fruit trees on that land, have the person occupying
(his land) give him the price of those trees.(7) If he piled up dirt into mounds (for fill), pay him an approriate price.
As for the land, do not buy and sell it at all.
All
land belongs to the king. Sale of land is prohibited. The people may occupy
land and are encouraged to do so in populated areas. People may abandon
their land temporarily if it is fenced in. If someone uses the land in
their absence, that person must return the land and pay an appropriate
price for the use of the land. However, if people leave the land for nine
or ten years, they lose their right of usufruct.
Part
14
Endnotes:
(1)
C.S. is an old Burmese dynastic dating system. The recension was completed
in the year 1166 of the C.S. system.
(2)
Throughout these translations we frequently translate the pronoun than as thammasat. Than is an honorific pronoun used in these
instances to refer to the thammasat. We have omitted the article
to convey more forcefully the Thai conception that the thammasat is not just a book or an anthropomorphic angel, but omnipresent natural
law. For more information on the thammasat see Ishii, Yoneo (1986),
"The Thai Thammasat," in Hooker, M.B., ed., (1986-88) The
Laws of South-East Asia vol. 1 pp. 157-8.
(3) I.e. not yet transplanted.
(4) Rai is a measure of land area. About two and a half rai equal one acre.
(5) I.e. fill back in.
(6)
We omit from the translation of this provision an introductory passage
containing mythological references and a quote in Pali from the theravadan
scriptures.
(7) I.e. the value of the fruit of those trees. |