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. |
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.
Part
8
Endnotes:
(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). |