2. THE THAI TRADITIONAL LEGAL SYSTEM

(1) Dharmasastra: Its juristic character

The traditional Thai legal system possessed a special characteristic, of which anyone wishing to study it ought to take special note: there was a written corpus juris in the form of the Dharmasastra which assumed a dominant place in the system.

(2) Two domains of law: Written and unwritten

Many knowledgeable persons with some acquaintance with the legal systems of the East, particularly China, show considerable surprise at the fact that there is a wide area of unwritten law, especially that related to civil law, which is of general application, in spite of its being unwritten. Some show their surprise that the legal systems of the East are occupied invariably, and mainly, by the provisions of criminal law (cf. Jamieson, 1970: i). One has to bear in mind that the traditional legal systems of the East, especially the Thai, were products of the characteristic concept of law of the East. The people of the East conceived the idea that the relationships between people in a community should comply with the well-established tradition of usages, customs and morals, and therefore do not make a clear distinction between the concepts of usages, customs and morals on the one hand and law on the other.

With the passing of time, it became necessary to enforce sanctions against the violation of the existing norms. There emerged the process of adjudication that should lead conflicts to solution either by way of persuasion, reconciliation or compulsion. Within the narrow circle of the close-knit community, only when compulsion could not be effected was the assistance of the external political authority needed to enforce compliance or to punish intransigents.

a. The domain of written law

When the number of the written legal rules formulated as above became great they were compiled to form an integral part of the main corpus juris, known as the Dharmasastra or Code of Manu. The legal rules so incorporated into the Dharmasastra are called the Rajsastra, being the law of secondary rank, a derivation from the rules and principles of Dharma as stated in the Dharamasastra. The legal rules originally appearing in the Dharmasastra were known collectively as Moola kadi, meaning literally “the roots of the matter”, while those in the Rajsastra were known as Saka kadi, literally “the branches of the matter”.

But the nature of the written law was not like that of Western law; this is most conspicuously exemplified by the Uttalum case.¹It may help understanding if a provision of the law of Laksana Rad Fong (Reception of Complaint) directly relevant to the Uttalum case is referred to (Procedure 4, Section 1).

“Whoever is an �Uttalum’ person, having no gratitude to his parents, his paternal grandparents or his maternal grandparents, bringing a complaint against his parents, paternal grandparents or maternal grandparents, shall be severely punished by flogging. He shall be considered an ungrateful son, a bad example to be followed by no one, and his complaint shall be dismissed.”

b. Autonomous legal domain

The above punishment of flogging was merely the procedural measure to dismiss the disputed case which the Thai traditional legal system conceived as an internal affair to be resolved by family members. Such a practice meant that the Thai traditional legal system considered the family as an “autonomous legal domain.” Any matter concerning the family had to be settled within the family by the members, and the King and Royal Court would not involve itself in such affairs.

The autonomous legal domain, or the autonomous domain of unwritten law, meant the role and status of the members of a community, governed by usages and customs established since ancient times. Such a form of social control sprang from the “spontaneous order” in Hayek's terminology, deriving its authority from strongly sensitive bonds among the members. Any conflict and deviational behaviour of the members should be handled entirely within the said autonomous domain. The written legal rules in the Thai traditional legal system contained no rules concerning such autonomous domains.

Apart from the family, another autonomous legal domain recognized was the Sangha (Brotherhood of the Buddhist Monks or Ecclasiastical Order).

The norms of conduct to regulate the members of the family were usages, customs, morals or even religious teachings, which all the Thai people knew very well. Each member knew his or her role and status in accordance with the norms of the domain concerned. A familiar comment on the conduct of a person who was considered as grossly overstepping his proper role or status was “What a father he is!” or “What a husband he is!” Such a comment presupposed a certain idea of what a good father or husband ought to be like. Such norms of conduct in the family, whether they were called usages, customs or morals, were enforced within the family. The Uttalum case was related to the norms of a son-in-law to ensure his proper behaviour toward the members of his wife's family.

The law of husband and wife which formed part of the Dharmasastra showed clearly the acceptance of such a practice. In the Code of Rama I, Section 57 stated:

“The man who has taken another person's daughter or niece as his wife shall pay proper respect to the wife's parents, elders and relatives as if they were his own, and shall not act improperly. If he quarrels with or beats his wife, intends to use weapons against her, her parents and relatives (who have tried to persuade him to desist), or refuses the persuasion and beats them, causing bodily harm, he has committed a serious improper act, and his wife's family shall return to him the property brought by him and expel him from their house without compensation.

If a man beats his wife's parents or elders, causing them grievance about bodily harm, or commits robbery, he shall be considered a rude, dishonest and unreasonable person, and his wife's parents shall confiscate all his property, give it to the wife, and expel him from the house to prevent further harm. If the wife still loves him and wishes to follow him, she shall be allowed to do so, but not be given any property. When she has children, the property shall be given to them, as she has lost her gratitude to her parents.”

The contents of the said Section referred to the duty of the child towards his parents, elders and relatives as already existed in customs and morals. This customary and moral rule was extended to be applicable to the son-in-law who, according to the normal practice, went to live with his wife's family. This Section also stipulated the types of conduct which were considered such serious violations of the customary and moral duty that the authority had to become involved.

Another important provision was, Section 58, concerning good conduct, which was to ensure in another way that the intransigent son-in-law would conduct himself properly toward the elder members of his wife's family. It declared:

“The man who has taken another person's daughter as his wife shall pay proper respect to his wife's parents, elders and relatives. If he does not do so and always gets drunk, beats up his wife, refuses to listen to her parents’ advice to desist, becomes rude to them, and hits them even though unintentionally, he shall beg forgiveness from them. Her parents shall require from him a bond of good behaviour. This shall be applicable to his wife's elder brothers and sisters and uncles and aunts mutatis mutandis.“

The customary and moral rules enforced in the autonomous legal domain were based on the idea that the parents or the elder members of the family had the authority to ensure that each member of the family conduct himself properly.

(3) Comparative analysis of the two domains

a. Written law

The Thai written law consisted, in a formal classification, of the Dharmasastra, Rajsastra and Royal Ordinances. The Dharmasastra included sacred, permanent and immutable legal rules derived from Dharma. It was perhaps comparable to natural law in the Western terminology. Those known as the Rajsastra and Royal Ordinances were neither sacred nor immutable as they were devised by human authority. Royal Ordinances or Royal Decrees were originally issued to meet the requirement of the times, to provide practical details for resolving actual conflicts. When their validity was successfully testified by repeated application, they were collected, revised and compiled into the code called the Rajsastra. The Rajsastra and Royal Ordinances could be amended or repealed when thought inapplicable, and were understood as a secondary natural law inferior to the Dharmasastra.

It was a special characteristic of the Thai written law that it was not considered as arbitrarily created by human authority. It contained the elements of both natural law and man-made law, similar to the lex humana of St. Thomas Aquinas, and was not a product of the legislative process according to the modern legal theory. Lingat confirmed for this reason in his famous lecture in 1949 that “The (Western) notion of law is entirely foreign to the traditions of the people in the Far East.” Although the modern Western notion of law is foreign to the Thais, the ancient and mediaeval notion is probably similar to the Thai.

Deriving from the permanent Dharma, the direct source of the Thai written law, were decisions on the actual conflicts that came before the authority. If we survey various important categories of law in the Code of Rama I, we find that the exordium of each chapter described the cause of the formulation of the law. It was unequivocally stated that the conflicts were adjudicated, and that the content of the decisions juristically abstracted should be followed in later decisions. We may thus say that the traditional Thai legal system was based on the notion of law for conflict-resolving, like case law in the West. But the Thai did not accepted the theory of binding precedents, because what were being followed were not the precedents adjudicated, but provisions in the Royal Ordinances. The important consequence of this practice was that only the types of conflicts that had been expected to be received by the corpus juris might have been brought before the authority, and that the cases brought would have been decided in accordance with the relevant legal provisions. In other words, the Thai corpus juris prescribed only the types of conflicts that the court would receive for adjudication. This is different from the Western legal system, especially in the field of private law where the general principle of rights, duties and liabilities allows private persons to bring any case before the court. This made Western jurists come to the somewhat distorted conclusion that the Thai written law was neither systematic, comprehensive, nor general in its structure; they neglected to mention private law in various areas (cf. Hooker, 1978: 3). Truly, the Western code did consist of general rules and principles to govern almost the whole of life; the Thai corpus juris, in contrast, approved the other system of unwritten law to regulate private spheres.

b. Unwritten law

As mentioned earlier, the autonomous legal domain, developing gradually and spontaneously over a long period of time, covered various spheres of community life in the family and Brotherhood of Buddhist monks. Its law was well-known to all the members through usages, customs and morals, and well-observed by the internal enforcement process. It was, in fact, wider in prevalence than written law. If we compare it to the ocean, written law may be compared to isolated islands scattered in the ocean. The fact that the Thai traditional legal system allowed unwritten law to regulate the internal affairs of domains in accordance with their spontaneous rules can be said to show great wisdom in the form of Volksgeist of the communities.

The evolution of the modern European law led to the attempt to employ state power to regulate almost every sphere of life, including the most sensitive domain of family. This was a fallacy of legal positivism and constructivism that prevailed in the West for a long time. If we are aware of the danger and harm caused by the excessive use of the law as a form of social control, we may be able to appreciate the high value of the rationality and wisdom underlying the Thai traditional legal system, to overcome the ethnocentric jurisprudence of the nineteenth century.