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. |
CHAPTER
2
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.
Part
5
Endnotes:
(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. |