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. |
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.
Part
6
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.
(23) Id. at 217.
(24) Id. 219-20.
(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.
(28) Id. 210-211.
(29) Id. 401-2. |