3. LEGAL SYSTEM AND JURISPRUDENCE

(1) The process of legal formation

The Dharmasastra was originally a collection of just and equitable, as well as sacred and immutable, principles, formulated by the propounder with full wisdom into Dharma, rather than coming about by arbitrary human power.

Thus the Royal Ordinances issued by the King which had come into force from time to time since the Ayudaya period (Lingat, 1949: 17, 28) were never referred to as Dharma, owing to their man-made nature. Still, having been devised by the King as the agent for the propounder of the Dharmasastra, they could be regarded as a derivation from the Dharmasastra, and they were compiled into the Rajsastra after being collected and revised; and the Rajsastra came to acquire the same authority and status as the Dharmasastra over a long period of time. According to Lingat's words, Royal Ordinances “became henceforward permanent rules not because they emanated from the Kings, but because they were illustrations of the eternal law and partaking in its authority” (ibid.: 27). The last recension of the Royal Ordinances was carried out by King Rama I, and resulted in the famous Code of the Three Great Seals.

The above process of incorporating the man-made law into the sacred Dharmasastra may be said to be the most ingenious device invented by the Thai traditional law, the product of the indigenous jurisprudence. It is through this process that various sources of seemingly conflicting laws were integrated into a seamless, single whole. This is quite different from the Western jurisprudence where the conflict between positive law and natural law has been conspicuous since the Christian middle-ages.

(2) Text and interpretation

The cause of the recension of the Code of the Three Great Seals was a case brought before the Royal Court: A married woman had committed adultery and petitioned the Court for divorce. The Royal Court granted her divorce; the unsatisfied husband appealed to the King. King Rama I was of the opinion that the Court's decision was unjust, as the wife, who was in fact guilty, had won the case. The King ordered the judges of the Court to be investigated to see whether they were guilty of partiality, as the husband contended. If the judges could not have justified their decision, they would have been severely punished. The judges in fact justified their decision as strictly based on the letter of the law. The King then asked to examine the official copy of the legal text, and found it stating clearly that if a husband is not to blame when his wife asks for divorce, her request shall be granted. The King was not satisfied with the matter and could not accept that the sacred and eternal Dharmasastra might contain so unjust a legal rule. He rationalized that the text might have been copied incorrectly by someone in a later generation. He appointed a Royal Commission to restore the pure original state of the Dharmasastra. The result was the Code of the Three Great Seals promulgated in 1805.

From the above event, we can infer that the provisions in the Thai Dharmasastra could be referred to with the highest legal authority, which even the King had to respect. Although the King had the power to issue Royal Ordinances to be enforced throughout the Kingdom, the Thai traditional concept of law considered them as merely detailed rules to supplement the Dharmasastra. It followed logically that the King could not issue Royal Ordinances contradictory to the provisions of the Dharmasastra and that the law must be adhered to with the spirit of jus strictum by the legal profession.

(3) Legal education and legal profession

There are some problems relating to knowledge of the law, written or unwritten: whether the general public or only government officials concerned should know the law, and what position the legal profession occupied in the traditional Thai legal system.

The Dharmasastra prescribed that it is the duty of the King to study the Dharmasastra, and there was a custom since ancient times that every day the King had a certain time to listen to the Dharmasastra read by an official.⁴ Pallegoix, a Catholic priest who came to live in Thailand in the nineteenth century, said in his book: “The King always keeps the corpus juris in his sleeping chamber, so that the Royal official can read to him at least 2–3 pages of it every day. Every senior judge and provincial governer must have a copy of the corpus juris ready for use.” (1977: 336) Another learned scholar also wrote that the Thai corpus juris was the manual of officials for the performance of their duties.

Due to its conflict-resolution-oriented character, the written law was necessary for the official and judge to consult before giving decisions. But the knowledge of the written law was confined to the group of experts or officials concerned; the general public could not be expected to know it at all. Even today, the older generation with a strong conservative view is still reluctant to let their children learn law. The profession of lawyer is not highly regarded in the belief that a good person does not need to know the written law, nor to go to the court, if he conducts himself in compliance with usages, customs and morals. Moreover, the Thai traditional legal system contained a provision prohibiting any person from intervening in another person's case. Any person who helped another unrelated person was deemed to be punishable⁵for the offence of inciting conflicts. The tradition of the Senatorial advocates who were praised as the Priest of Justice in Rome, or that of the Barrister in England, could not be established under the Thai traditional law. The ideal of a learned patrician in the East was that of a gentleman who makes peace, not an able advocate who wins cases for others in the court.

(4) Religion and law

The influence of religion on law and administration of a country is an undeniable fact, but the extent of the influence depends upon the country's cultural background. In understanding the influence of Buddhism upon the Thai traditional law, we must carefully guard against misunderstanding.

The widely-known special nature of Buddhism is that it is a religion to praise peace and gentle treatment of man as deserving admiration. Although Buddhism has not fully succeeded in turning most countries into peace-loving ones, with all its prevalence over the vast area of South-Eastern Asia it has at least succeeded in tempering considerably the cruelties perpetrated by man against man, as found in many instances in the Thai traditional law. One such instance was a provision during the Ayudaya period, prescribed for a case of robbery: If a robber murdered the victim, the robber should be handed over to the family of the deceased so that they might punish him as they wished; but if they do not intend to punish him cruelly, they can choose to have him pay a ransom in exchange for his liberty, or beg for redemption of his sinful act by becoming a monk, or else they may forgive him and set him free⁶. This provision still retained a trace of the law of self-revenge on the one hand, but it attempted on the other to find a milder measure to avoid the possibility of causing another death. Such an attempt was influenced by Buddhism, because the Hinanaya Buddhist considers killing to be the gravest sin of man, and accordingly there is an established teaching that only forgiveness can terminate the vicious circle of killing.

According to another provision,⁷ if a man is felling trees away from the highway and the axe-head looses from its handle and kills another person, the law deems it to be the kharma⁸ of the victim and the tree-feller shall perform meritorious acts for him; but if the axe-head and handle loose from the feller's hands and cause death, it is the fault of the tree-feller, and he shall pay compensation at the rate prescribed by the law. The performance of meritorious acts for the victim was used here to effect reconciliation between both parties according to the Buddhist idea.

Divorce by consent was prescribed in the Royal Ordinance on the Law of Husband and Wife, Section 67 as follows:

“If a husband and his wife no longer feel physically and psychologically attracted to each other and wish to get a divorce, the divorce shall be granted. They shall not be compelled to cohabit, as the previous merits which had sustained their cohabitation have been exhausted.”

This provision also expressed the Buddhist belief that being husband and wife in this life is the result of the common merits performed by them in their previous lives. The length of the period of cohabitation depends therefore on the amount of the common merits performed. If the latter is great the former will last for long time. Defiance of the belief is impossible.

The King sometimes attempted to employ the law as an instrument to enforce compliance with religious precepts in the Kingdom. One such attempt occurred during the reign of King Rama I: A Royal Proclamation required the public to comply with the five norms of good behaviour prescribed for laymen by Buddhism,⁹ and further prescribed punishment to be imposed in case of violation. However, it is not known how this provision was enforced, nor whether it achieved the desired result. It is believed that the fate of this law was no different from that of any other laws that tried to enforce compliance with religious precepts on the public.

The Sangha is governed mainly by a Buddhist corpus juris canonici known as Vinaya (Holy Precepts), forming one of the three parts of the Buddhist Holy Scripture, the Traipidhaka (Tripitaka), originating from Buddha himself. Vinaya is unalterable in nature, but is in fact supplemented by the commentaries of a long tradition, and by commentaries on the commentaries, together with usages and customs developed within the Sangha. These various sources constitute the subject-matter of Buddhist jurisprudence. The jurisprudence has been studied, taught and imparted from generation to generation, and is judiciously cultivated in the two Buddhist universities and all monastery schools in Thailand. The administration of the Buddhist law is considered as an internal affair of the Sangha, another autonomous domain like the family. However, in cases where secular support is needed, a secular law-suit may be resorted to. This is evidenced in the Declaration of the Buddhist Ecclesiastical Order dated 15 July 1903 (Bangkok Era 121) by the name of the Great Patriarch, Prince Vachirayan Varorasa who was the great reorganizer of the Order in modern Thailand (Vachirayan Varorasa, 1971: 40,41). It stated:

“All Buddhist monks are, apart from being bound to comply with the Vinaya as our own personal law, also under the jurisdiction of the secular law either as particular law applicable to a limited class of people or as general law binding on the general public. They must also comply with good custom that is not contradictory to the two kinds of law above-mentioned. In brief, the Sangha is bound by law from three different sources. The Act on the Organization of the Buddhist Ecclesiastical Order therefore ought to be studied by every monk so that he may understand it and conduct himself correctly.”