1. CONCEPT OF LAW

In any article concerning the problem of legal pluralism and reception of Western law in non-Western cultures such as the Thai, the proper meaning of what we call law should be provided for correct analysis of the problem.

By the word “law” in this article we mean a norm or a system of norms, the violation of which by necessity calls forth human responses known as sanctions. Law possesses a distinctive nature, seriousness, in that its violation is so serious that the violation will not be left unchallenged by either the victim or the community at large. The norms are adhered to strictly. The seriousness and strictness are thus inherent in the nature of law, and give security for enforcement of sanction, the most distinctive feature of law in Western jurisprudence. In case of violation of these norms, the victim generally would not remain passive but would react actively to the violation in defence of himself, seeking redress, self-help or revenge. In a primitive community, the inviolability of the legal norms may have been supported by the belief in a supernatural power which expressed itself in the concept of taboo. Later on when the community was more developed, its members organized themselves to support and ensure the authorized enforcement of the legal norms instead of allowing the parties to use unrestrained self-help to protect their rights and interests. The judicial institution and process were established in the community to settle disputes. In brief, we may say that the norms of behaviour in the community of the early period emerged in the form of usages and customs, and gradually developed through repetitive practices over a long period of time, until the community felt that there was an obligation to follow such practices as they were right. Part of the usages and customs that remained unaccompanied by sanction through deliberate and organized enforcement, became differentiated from law accompanied by sanction as simple custom. The legal nature of the norms was derived not so much from the mere existence of sanction, however, but rather from the very nature of the norms themselves, which makes enforcement inevitable for its developed seriousness and strictness.