IV. Conclusion

The reception of Western law in the East in the nineteenth century meant the reception of legal systems at different stages of development in a totally different culture. The Eastern countries were not only receiving new systems of law but also totally new ways of thinking of law, such as the idea of state sovereignty with its accompanying legislative power.

In this process, however, they inadvertently abandoned their age-old traditional conviction in the immutable law of justice and equity over which no human law could prevail. It was unfortunate that the reception occurred in the nineteenth century when the spirit of jus strictum was dominating the age, with only a little of the spirit of jus aequum supplemented in later codifications as in the German Civil Code. The Western positivistic jurisprudence was hurriedly imparted to the East. The spirit of jus strictum was fortified by an over-confidence in the omnipotence of law and the fallacy of modern constructivism (cf. Hayek, 1976, I: 14–15). It was not possible for the new-born legal profession, trained under such a jurisprudential spirit, to develop a fruitful organic connection between the received Western law and the indigenous cultural milieu. If we understand the jurisprudential spirit in legal development in the three main categories mentioned earlier: Volksrecht, Juristenrecht and Satzungsrecht, and employ them properly in treating various systems of law, it would be possible to develop a method of interpretation and application of law sufficiently to take full account of the jurisprudential techniques and cultural backgrounds.

The modern fallacy of the omnipotence of law must be overcome, and the limitation of law as an instrument of social control must be recognized. The Thai traditional legal system had the wisdom of the autonomous legal domain: an area where the written law of the state dare not tread, for the sensitive and delicate nature of internal relationship is one with which the rough hand of the law is not appropriate to deal. This, along with other similar social institutions in the East, is a product of a true wisdom after many centuries of experience. The wisdom was old in its origin, but is still relevant to contemporary problems of our society. The time may be ripe for a new synthesis, and the old wisdom may be put into its rightful niche with refreshed energies for the future development of society.