1. HISTORICAL SURVEY
The Thai legal system, before coming into contact with and being thereby greatly influenced by Western law and culture, had a feature common with those of other countries of the East.
The feature is generally labelled as “traditional” or “pre-modern.” In order to analyse the Thai legal system in the theoretical framework mentioned above, a brief historical survey will be made.(1) The Thai nation: Its cultural setting
The modern Thais, the Shans, the Laotians and many other hilltribes in the south of China, belonged to the same race known as “Thai”. Even though there is still some disagreement among experts, it is generally accepted that the original settlement of the Thais was in the south of China. Chinese historical documents had records about the Thais since 600 B.C. and their mention was more frequent in later periods. Many historians note that the Thais, who were scattered over a vast northern area, were moving south gradually and spreading out. On their way they had to adapt themselves to the requirements of new circumstances. They also came under the influence of other tribes with which they came into contact. After reaching the Indo-Chinese peninsula they further mingled extensively with the Khmers, the Mons and other tribes.
Despite these contacts with different tribes, some distinctive features of the Thais have been tenaciously retained. The customs about marriage and family are the most remarkable, differentiating them from their two great neighbours, China and India, and leaving some imprints on the present Thai legal system, to be described later.
In A.D. 1238, the Thais that had settled in the north of present Thailand, with increasing population, declared independence from the Khmers, to establish the Thai state for the first time at Sukhodaya. From that time on, we can speak of the history of Thailand in three periods.
(2) The Sukhodaya period (1238–1350)
A graphic description of the life and custom of the Thai people, and law and administration in the first Kingdom, are found in the famous Sukhodaya inscription, purportedly made during the reign of King Rama Kamhaeng the Great of Sukhodaya. The Thai community of this period was a simple tribal one. The status of the monarch was rather that of a tribal chief, not qualitatively different from his people. In the words of the learned Prince Dhani,
“The monarch was of course the people's leader in battles, but he was also their father in peace-time, whose advice was sought and expected in all matters and whose judgement was accepted by all. He was moreover accessible to his people, for we are told by an old inscription that in front of the Royal Palace of Sukhodaya there used to be a gong hung up for people to beat upon whenever they wanted personal help and redress” (Dhani, 1965: 162).
During this period trade was developing. Property right, especially ownership of land and right to succession, were recognized. Simple judicial processes like dispute settlement in the family was in existence. Animistic religious beliefs existed side by side with Buddhism. The law in this period could be called Volksrecht, in which custom and morals were indistinguishably mingled.
(3) The Ayudaya period (1350–1767)
After a century or so of the Sukhodaya Kingdom, the power moved to the Ayudaya Kingdom, and continued there for over four centuries. This was the period during which the power of the Thai nation was firmly established in this part of the Indo-Chinese peninsula. The Kingdom developed gradually to become one of the most important administrative centres in this area. Geographically, Ayudaya was situated near the sea and the main international trading routes. The society became more complex through trade and commerce as well as by expanding territory and increasing population. These necessitated the reorganization of the administrative system.
The loosely-organized administrative system was no longer suitable. An important reform of the administration occurred in the reign of King Trailok (1448–1488), based on the administrative system of the Khmer Empire which was itself strongly influenced by Hinduism. The administration was more centralized and the centre was divided into four ministries: Palace, Interior, Finance and Agriculture. The monarchy was gradually transformed from that of a patriarchal kinship group during the Sukhodya period to a divine kingdom influenced by the Khmers and Hinduism.The legal system became more complex. The judicial system and procedure became fixed and institutionalized. Robert Lingat believed that Hindu legal culture represented by the Code of Manu had been known in Thailand since the Sukhodaya period. However, we may state that the Hindu legal culture and the Code of Manu had a greater influence on the Thai legal system and society during the Ayudaya period than at any time before.
The Kingdom of Ayudaya was destroyed by the Burmese army in 1766. But the Thai recovered their power within a short time.
(4) The Bangkok period (1767-)
As the destruction of the Ayudaya Kingdom by the Burmese army was almost total, the early Bangkok period was the time of restoration of every aspect of Thai society. In terms of legal history, the Bangkok period inherited the law of the Ayudaya period without any change. The restoration of Thai law finally culminated in the Code of Rama I or the Code of the Three Great Seals. It was a compilation of the verified written law of Thailand, and a decisively important event in Thai legal history, enabling posterity to see the Thai traditional legal system and concept of law.
The Code of the Three Great Seals promulgated in 1805 by King Rama I was enforced until the beginning of the reign of King Rama IV, when Thailand began to modernize her government by the reception of Western law. But its basic ideas have still remained alive as the corpus juris of Thai law. Its nature and mode of application is explained later.