The Eclipse of the Astrologers: King Mongkut, His Successors, and the Reformation of Law in Thailand

[This appeared as chapter 10 of P Nicholson and S Biddulph (eds), Examining Practice, Interrogating Theory: Comparative Legal Studies in Asia (Leiden, Brill, 2008)]


'You will do your best endeavour for knowledge of English language, science and literature, and not conversion to Christianity; as the followers of Buddha are mostly aware of the powerfulness of truth and virtue, as well as the followers of Christ, and are desirous to have facility of English language and literature more than new religions.' King Mongkut’s Letter to Anna Leonowens, 1862

I  KING MONGKUT’S HOBBY

I don’t believe in astrology; I’m a Sagittarius and we’re skeptical. Arthur C Clarke

In this chapter I wish to explore in a speculative vein a few notions arising from a long view of the development of law in Thailand from the time of King Mongkut through the reform period under his successors, which I hope would have implications for approaches to comparative legal studies in Asia generally: there are certainly some resonances, but also a considerable measure of unique experience, which continues to be relevant to any appraisal of law in contemporary Thailand. What I hope to show, without expressly arguing the case, but perhaps by means of the example discussed, is that a legal historical approach is very fruitful as an exercise in comparative law, and also as instruction in the processes of law and development. More particularly, a longer view of legal change informs our understanding of ‘other’ legal systems; at times challenging the immediacy and minutiae of contemporary studies. Further, while transplantation is so exhaustively debated today, this analysis demonstrates the longevity of the debates and suggests how relatively little has changed in the practice of legal borrowing. Let me state first that the title is derived from an incident concerning King Mongkut’s astrologers, which we could see as a paradigm of the kind of modernisation that Asian comparative legal scholarship has to confront. This incident occurred in Siam in 1868 and is known as the Wako incident.1 In this chapter Wako is seen as a pivotal event in the modernisation process generally, having very strong implications for legal development up to the present time. The central character in the story is King Mongkut (Rama IV, 1851–1868) himself, a man who spent 27 years as a monk before becoming King of Siam in 1851 at the age of 47.2 The accession of King Mongkut is reckoned by many to represent a turning point in the history, and one might say particularly the legal history, of Siam, law reform being both symbolically and practically the cornerstone of modernisation. Mongkut was an intellectual and a religious man, and even if he had never become King or featured in the absurdly exotic representations in celluloid of his employment of the somewhat irritating but idealistic Anna Leonowens as his children’s governess,3 he would probably have gone down in history as a reformer of the Buddhist sangha, and the leader of a modernising movement that reconciled a return to Buddhist orthodoxy with a general acceptance of western science and rationality.4 As Preedee Kasemsup correctly states “there were conflicting desires to preserve the national cultural tradition and at the same time to achieve an enormous progress. The most important personage representing both desires was King Mongkut.”5 Mongkut therefore appears as a complex but key personality in the history of Siam, no less than a truly great king. In many respects, despite huge changes since his death, it is the world of Mongkut that Thai people still, psychologically, inhabit. Although he did not engage in the extensive law reform that characterised the reign of his son and successor King Chulalongkorn (Rama V, 1868–1910) and was later completed by Chulalongkorn’s sons King Vajiravudh (Rama VI, 1910–1927) and King Prajadhipok (Rama VII, 1927–1935), Mongkut laid the groundwork in many ways, not least by the enactment of hundreds of Royal Ordinances, for the emergence of his country as the progressive, successful, culturally rich, yet also politically unstable and in many ways deeply puzzling one we now know as Thailand.

 1 Thongchai Winichakul, Siam Mapped: A History of the Geo-Body of a Nation (University of Hawai’i Press, Honolulu, 1994), pp. 37–61.  2 See, further, O Frankfurter, ‘King Mongkut’ in The Siam Society Fiftieth Anniversary Commemorative Publication: Selected Articles from the Siam Society Journal (Siam Society, Bangkok, 1954), vol. 1, pp. 191–207; P.W. Thornely, History of a Transition (Observer Press, Bangkok, 1923).  3 The King and I (1956). based on the 1951 Rogers and Hammerstein musical of the same name; Anna and the King (1999). For an historical account, see Leslie Smith Dow, Anna Leonowens: A Life Beyond the King and I (Pottersfield Press, Lawrencetown Beach, 1991).  4 Peter A. Jackson, Buddhism, Legitimation, and Conflict: The Political Functions of Urban Thai Buddhism (Institute of Southeast Asian Studies, Singapore, 1989).   5 Preedee Kasemsup, ‘Reception of Law in Thailand — a Buddhist Society’ in Masaji Chiba, Asian Indigenous Law: In Interaction with Received Law (KPI, London and New York, 1986), pp. 267– 300. See also Seni Pramoj, ‘King Mongkut as a Legislator’ in Selected Articles from the Siam Society Journal (Siam Society, Bangkok, 1959), vol. 4, pp. 203–237. R Lingat, ‘Evolution of the Conception of Law in Burma and Siam’ (1950) 38 Journal of Siamese Society pp. 9–31, at p. 10; Prince Dani Nivat, ‘The Old Siamese Conception of the Monarchy’ in The Siam Society Fiftieth Anniversary Commemorative Publication: Selected Articles from the Siam Society Journal (Siam Society, Bangkok, 1954), vol. 2, pp. 160–175, at p. 163.

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It was during Mongkut’s reign, in 1855, that the first demeaning or ‘unequal’ treaty (known as the Bowring Treaty after Sir John Bowring, the Governor of Hong Kong, who negotiated it6) was signed. This treaty, described as “the traditional line of demarcation” between the ancient and modern periods of Siamese/ Thai history,7 gave foreigners in Siam the right to be dealt with according to their own law in consular or later international courts, setting a precedent for many other similar treaties embodying the principle known as ‘extraterritoriality’, which were all finally revoked between 1920 and 1938, the year before ‘Siam’ became ‘Thailand’ (the land of the free).8 In a sense Siam was under sub-colonial subjection, or at the very least the constant threat of being colonised, for some 50 years, and the commencement of the process of revocation of the treaties marked the moment when it joined the international community as an equal participant.9 Although the statistical movement had not yet induced lawyers 150 years ago to rank legal systems according to objective criteria, Siamese law was undoubtedly regarded in international relations as backward, oppressive, inadequate to protect foreigners on Siamese soil, and certainly inferior in all respects to Western law. As one European put it in 1837, “the government is a perfect despotism, and the channels of justice are polluted by corrupt propounders of the law, equity and justice are but mere empty names, and good laws are a mockery”.10 More importantly the unequal treaties opened Siam definitively to foreign trade on terms favourable to the West. It was in a sense the beginning, for Siam, of what we now know as globalisation, and imposed on Siam an obligation to improve its laws by making them congruent with, and therefore equal to, those of European and other developed nations such as Japan and the United States. Spurned by the nobility, despite being first in the line of succession to Rama II in 1824, Mongkut had wisely left the political stage clear for his half brother King Nangklao (Rama III, 1824–1851) by going into the monkhood. But Mongkut did not spend the entire 27 years of his predecessor’s reign engaged in religious contemplation and ritual. He took the opportunity to reflect on his country and the universe as well as his religion, and became learned in Latin and in English, a language through which he learned Western mathematics and science, especially astronomy; but he was also devoutly and learnedly Buddhist and an enthusiastic  
 6 See generally M.B. Hooker, ‘The “Europeanization” of Siam’s Law 1855–1908’ in M.B. Hooker (ed.), Laws of South-East Asia, vol 1 (Butterworths, Singapore, 1986), pp. 531–607; John Bowring, The Kingdom and People of Siam (Oxford University Press, Kuala Lumpur, 1969).  7 Philip von Mehren and Tim Sawyers, ‘Revitalizing the Law and Development Movement: A Case Study of Title in Thailand’ (1992) 33 Harvard International Law Journal pp. 67–102.  8 Hooker, ‘The “Europeanization” of Siam’s Law 1855–1908’, supra note 6; Francis B. Sayre, ‘The Passing of Extraterritoriality in Siam’ (1928) 22 American Journal of Comparative Law pp. 70–88. Extraterritoriality, it should be noted also applied to the large numbers of Asian foreigners in Siam who were subjects of colonising powers, as well as Westerners — a fact which added considerably to the humiliation keenly felt by the Siamese leadership. For modernisation generally in Siam/Thailand, see also Maurizio Peleggi, Thailand: the Wordly Kingdom (Singapore, Talisman, 2007).  9 Likhit Dhiravegin, Siam and Colonialism (1855–1908): An Analysis of Diplomatic Relations (Thai Watana Panich, Bangkok, 1975).  10 Edmund Roberts, Embassy to the Eastern Courts of Cochin-China, Siam and Muscat (Harper Brothers, New York, 1837), at p. 305.

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expert in Siamese astrology, to which he made many contributions, including the Siamese calendar and the replacement of divination with calculation of heavenly movements. Most tellingly, he explained that celestial phenomena were not omens of disaster, because their causes were known and they were observed also in Europe, and therefore they had no special significance for Siam, which was just one of many countries, not a mirror of the universe itself, as was believed by many Siamese. He realised that Siam had to modernise by learning from those other countries; otherwise it would be colonised (or one might say further colonised) by them. The French gunboat diplomacy of 1893, when French forces actually sailed up the Chao Phraya River and blockaded Bangkok to force Siamese recognition of French possession of Laos, an act carried out against a terrified Chulalongkorn, showed very clearly the dangers foreseen by Mongkut.11 Mongkut was, however, happiest when calculating planetary movements, a hobby at which he was indeed rather good. Mongkut created an intellectual and political environment in which open inquiry and debate concerning religion and the natural world, involving not just Siamese but also foreign missionaries, diplomats and scientists, involved attempts to explain natural phenomena such as planetary movements, weather, and embryology, which in light of Western scientific discovery meant rejection of the traditional notions of cosmography, but also posed the question “to what extent their rejection in the face of Western scientific experimental knowledge also eroded the meaningfulness and validity of Buddhist social ethics and Buddhist philosophical and soteriological principles”.12 Mongkut’s answer was that while Buddhism was in no way inferior to Christianity in either rationality or spirituality, worldly matters were not to be treated in the same way as religion, thereby opening the door to science and other mundane emanations of the West, which would ultimately include European conceptions of law. In this he anticipated a common view in the East Asia of the nineteenth century that Western science was useful for development, but Asian values were useful for social ordering. As Stanley Tambiah puts it: [T]he manner in which Thai Buddhism as religious doctrine, precept and practice and modern science as a system of empirical knowledge and technological practice were aligned some 140 years ago in Mongkut’s time [should] be considered a statement of sustainable modernity that is an alternative to the dominant Eurocentric debate on the relation of science and Christianity.13 Mongkut was an enlightened moderniser but was also a conservative in political and social matters. During his reign he enhanced religious freedom and mitigated considerably the harshness of some traditional Siamese laws, especially regarding  
 11 Progressively Siam was forced to recognise British spheres of influence in Burma and Malaya, and French spheres of influence in Laos, Cambodia and Vietnam.  12 Stanley J. Tambiah, ‘The Shaping of Thailand by the Chakri Dynasty’ (Public Lecture delivered at Thammasat University, Bangkok, 12 May 1999) <http://kanchanapisek.or.th/library/TambiahThailand3.htm>.  13 Ibid.

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women, children, and debt slaves, and he restricted gambling and opium consumption. All his preoccupations — science, astronomy, astrology, religion, politics, international relations, and even the royal succession — came together at Wako.

II  STORY OF AN ECLIPSE FORETOLD

An event is such a little piece of time-and-space you can mail it through the  slotted eye of a cat. Diane Ackerman

The Wako incident took place near the end of Mongkut’s reign in 1868. At Songkran, the Siamese New Year, in April, Mongkut, as was his habit, had made predictions of celestial movements, including a total eclipse of the sun. In August he went so far as to predict its precise duration and to state that it could be seen only on a belt of land across the Kra isthmus on 18 August. His measurements were expressed in the Siamese fashion, but the calculations were made by Western mathematical methods; he did, however, also consult a Mon treatise which was regarded by the court astrologers as unorthodox. The latter made a prediction of their own on the basis of orthodox Siamese astrology, which involved a partial eclipse only and no belt of land. The eclipse became a test of nerve between conservative and progressive forces, “an event symbolic of epistemological struggle”.14 Wako was a place to the South West of Bangkok, a mosquito-ridden patch of jungle, significant only in mathematical terms as the precise location from which Mongkut predicted the solar eclipse could be observed. He organised a party including court astrologers, Western scientists and diplomats, and his son Chulalongkorn, then not quite fifteen years old, to embark on an expedition to observe the remarkable event. His purpose was first to demonstrate to the doubtful and somewhat cynical astrologers the accuracy, the ‘truth’ in fact, of Western science; and secondly, to demonstrate to the foreigners that Siam was quite capable of understanding and applying their science. Clearly Mongkut had invested much in this somewhat risky enterprise. Failure would mean becoming a laughing stock all round; but if he was successful the conservatives would be checkmated and modernisation would become politically not just possible but inevitable; and that meant the use of Western science and rationality, and hence also eventually Western economics, governance and law.15 Since Mongkut was a monk who believed in the truth and wisdom of traditional Buddhism, his embrace of Western science could hardly be presented as merely fashionable or as the unholy rejection of tradition. Indeed as we shall see, and as is implicit in his instructions to Anna Leonowens, Mongkut saw no contradiction between his science, his philosophy, and his religion. His legal world was in all  
 14 Winichakul, supra note 1, at p. 42. 18 August is celebrated in Thailand as Thai Science Day in tribute to Mongkut.   15 W.F. Vella, The Impact of the West on Government in Thailand (University of California Press, Berkeley, 1955); Peleggi, supra note 8.

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probability one rooted in the cosmos, a world where, in O’Connor’s expression, society is “always out of phase with law”, rather than, as in our twenty-first century way of thinking, law being “always out of phase with society”.16 For Mongkut and his subjects, “the legal system flourished on the ambiguity between cosmic, natural and positive law”.17 The preparations were thorough, the journey exhausting, the occasion itself unique and impressive. At first it appeared that cloudy skies would render the whole exercise nugatory, but, almost magically, just at the critical moment as the eclipse commenced, the clouds parted and the eclipse was observed — a total eclipse, exactly on schedule and exactly according to Mongkut’s predictions in every detail. The astrologers were routed and Mongkut’s science vindicated. Indeed the King on his return to Bangkok was determined to capitalise on his victory, administering to the astrologers and the nobility a lecture in the form of a lengthy letter on their arrogance, ignorance and lack of attention to detail. They were even mildly punished with a form of community service and eight days’ imprisonment, and required to write out the King’s letter by hand, like misbehaving schoolboys writing lines in detention. Unhappily, however, this was to be his last act. Modernisation had not progressed so far as swamp-clearing or the invention of Shelltox, and both Mongkut and Chulalongkorn caught malaria at Wako. Mongkut died shortly afterwards, but his son, on whom surely the lesson of Wako was far from lost, survived and went on to advance the project of modernisation, not quite to completion, but certainly very far indeed before his own death in 1910.18 Mongkut himself, it should be stressed, saw Wako, not as a blow for traditional religious orthodoxy, but rather as independent confirmation of the truth of Buddhism. It is interesting to speculate how in Mongkut’s epistemology and cosmology truth itself might have been defined or ascertained. Suffice it to say that the parting of the clouds at the commencement of the eclipse was in his view confirmation of divine intervention; indeed, while the Europeans busied themselves with experiments, Mongkut made religious offerings. Mongkut’s reign began with a setback and ended with a triumph. There could now be no turning back. In legal terms we can see that the progressive adoption of Western legal codes, commenced in the latter part of Chulalongkorn’s reign and completed through the first third of the twentieth century, made the case for the unequal treaties, reluctantly signed, less and less compelling. The attainment of recognition of Siam’s equality owed much also to the fact that Siam declared war against Germany and Austria-Hungary in 1917, seizing twelve German vessels, sending soldiers, nurses and even pilots for training to the Western front in 1918, participating in the Versailles Peace Conference, and becoming a founding member of the League of Nations in 1920, in which year the United States was the first to revoke its unequal treaty, setting a precedent for the other nations such as Britain  
 16 Richard A. O’Connor, ‘Law as Indigenous Social Theory: A Siamese Thai Case’ (1981) 8 American Ethnologist pp. 223–237, at p. 233.  17 Ibid.  18 Winichakul, supra note 1.

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and France in 1925.19 Siam was by that time a modern nation, taking her place around conference tables with other, more powerful nations. Within 60 years of Wako, Mongkut’s policy was, apparently at least, vindicated. It was now impossible for Siam to be a colony. Its freedom had been secured — at a price.

III  A PAINFUL, DISRUPTIVE MOMENT

My astronomers have taken more land from me than my enemies. King Louis XIV of France20

Let us step back from the fascinating details of the Wako story and its place in Mongkut’s life, and try to discern its context and significance in terms of Thailand’s legal development and for Asian comparative legal studies more generally. The observation of the eclipse at Wako was not just an adroit but risky political move which, by a neat conjunction of chance and calculation, succeeded. It was also “a painful, disruptive moment of the confrontation of knowledge”.21 Despite Mongkut’s skilful melding of religion and science with politics, there is no doubt he was embarking on a process the result of which, unlike the eclipse, could not be foretold. The disruptive moment changed the Siamese universe for good; Mongkut was taking a risk on behalf of his subjects which would have ramifications far into the future. The official embrace of Western science meant implicit assent to many propositions which, in Siamese terms, were unfamiliar, problematical, open-ended, and in many ways dangerous. To take the point about astronomy and astrology as a symbolic but also very practical example, the Western science of astronomy was not simply a matter, shattering enough in itself perhaps, of placing the earth and mankind in their proper places in the universe. It was a matter of practical progress, involving for example the detailed calculation of a ship’s position at sea22 which had enabled Western sailors to explore and map all the oceans and regions of the world from the Nootka Sound to the Pearl River, to plant flags, to rename islands, to make astonishing measurements and outrageous claims, and in due course to demand unequal treaties and legal changes under threat of gunboat diplomacy — all this usually a short space before some other expedition of adventurers attempted the same thing.  
 19 The Treaty between Siam and Japan (signed and entered into force 25 February 1898), De Martens, Nouveau Recueil Général de Traités, deuxième série, tome XXXIII, at p. 203, was explicit in linking extraterritoriality with legal reform, providing that it would apply “until the judicial reforms in Siam shall have been completed, that is, until a criminal code, a code of criminal procedure, a civil code (with the exception of … marriage and succession), a code of civil procedure, and a law of constitution of the courts of justice will come into force”. See Hooker, ‘The “Europeanization” of Siam’s Law 1855–1908’, supra note 6, at p. 554.  20 Louis XIV was well known in Siam for his attempt (surely in Mongkut’s mind as he wrote to Mrs. Leonowens) to convert King Narai to Catholicism in the late seventeenth century: see E.W. Hutchinson, The 1688 Revolution in Siam (White Lotus, Bangkok, 2002), at pp. 33–34.  21 Winichakul, supra note 1, at p. 42.  22 Dava Sobel, Longitude (Penguin Books, New York, 1995).

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The encounter between Europeans and non-Europeans also resulted in a particular allocation of rights, responsibilities, property, territory, and sovereignty, all concepts which had a different connotation in a country such as Siam. Not only was Siam’s geography now spectacularly contextualised, its school books literally rewritten; but there were now, it seemed, many states, all of which had precise boundaries, and whose relations were governed by international law. Indeed the very idea of bounded space had played no part in Siam’s relations with neighbouring powers over many centuries, still less permanency of control over such space. Differing conceptions of boundaries led to constant clashes between Siam and the European powers. The marking of these boundaries could be achieved with exactitude if necessary by the use of astronomy; and while it was irresistible to use science just for the sake of it, there was the inevitable impetus of practical questions, such as who was to tax a certain border village or passage of goods, or when a territorial incursion had occurred. Borders became, not regions of indeterminate and fluctuating allegiance, but abstract legal demarcations that could and were indeed now required to be drawn with absolute precision on a map by the use of astronomy. This exactitude in international affairs came to entail a similar exactitude in purely internal legal ordering. As Tamara Loos puts it: [U]nlike Western legal theory at the turn of the century, Thai law then did not address the individual as the most basic and uniform unit or treat individuals as separate and autonomous beings. Instead Thai law operated on the principle that individuals were relational beings, inherently unequal, and in possession of different degrees of rights or privileges.23 Crucially, the relations between these punctiliously drawn jurisdictions in their new milieu of internationalism were themselves governed by law, which in this context meant law based on Western notions of sovereignty and free trade. It was not just the sun and the Siamese picture of the universe that had been eclipsed. Mongkut, whether he realised it or not, had effectively also ensured the historical eclipse, in due course, of traditional Siamese law and traditional conceptions of Siamese sovereignty. “In this process, however, [the Siamese] inadvertently abandoned their age-old traditional conviction in the immutable law of justice and equity”.24 Although his grandson Prajadhipok was able to tell the New York Times in 1931 that Siam’s slogan was to “adapt rather than adopt”,25 it is interesting to consider whether this slogan was a realistic description of what Siam actually legislated between 1855 when Mongkut entertained Sir John Bowring and 1935 when Prajadhipok abdicated. Had Mongkut set Siam on a rollercoaster of modernisation, in negotiating which no amount of desire to adapt could in practice resist  
 23 Tamara Loos, ‘Issaraphap: The Limits of Individual Liberty in Thai Jurisprudence’ (1998) 12:1 Crossroads pp. 35–75, at p. 71.  24 Kasemsup, supra note 5.  25 “‘Our slogan is to adapt not to adopt’, he [King Prajadhipok] said with a smile.” See Harold H. Denny, ‘Suffrage for Siam Is Planned by King to Test Democracy’, New York Times (New York), 28 April 1931, p. 1.

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wholesale adoption? Did Western law become as ‘true’ in some way for Siam as Western science did at Wako? Before attempting to answer these questions we will have to examine in outline the development of Siamese (and subsequently Thai) law since Mongkut.

IV  THE KING AS LEGISLATOR

By Royal Command, reverberating like the roar of a lion. Legislative formula, reign of King Mongkut

We can see that one immediate consequence of Wako and the victory, as we might put it, of calculus over divination was an increase in the constitutional power of the King, not just because Mongkut ousted from courtly influence the astrologers and what they stood for, but because he inaugurated a drive towards modernisation which entailed fundamental reforms which could only be achieved by the eclipse of custom by positive law, and by rapid rather than gradual or piecemeal development. Thus the cosmological paradigm shift at Wako involved also a constitutional paradigm shift which was equally essential to modernisation. Under traditional jurisprudence the King was subject to the thammasat, the religious law, as he was daily reminded by palace-ordained readings from it;26 he had no real power to legislate permanent legal change but only to make temporary provision to protect the people and preserve the thammasat. However, exceptionally some decrees were recognised during the Ayutthaya and Bangkok periods as being uniquely authoritative, and were absorbed into the thammasat if in conformity with it, just as ‘statutes of general application’, in addition to law and equity, were absorbed as part and parcel of the common law system when transplanted to Asia or elsewhere; they were regarded as permanent rules.27 From Mongkut’s time it became increasingly clear that the King was no longer merely the administrator of the thammasat, but was a legislator, a princeps legibus absolutus, who could make or unmake any law by the exercise of royal power.28 The thammasat, which had for so long in effect been the constitution of Siam, restricting the king’s room for manoeuvre, had finally given way to the rajasat — the decrees of the King — as the pre-eminent source of law and practical legal change. Law itself therefore came to depend on changeable legislation, and not on the immutable cosmological law, which according to the legal foundation myth of Theravada Buddhism, were found by Manu written on the  
 26 As Engel points out, there was, however, no political class to enforce this ‘constitution’ against him: David M. Engel, Law and Kingship in Thailand During the Reign of King Chulalongkorn (University of Michigan Center for South and Southeast Asian Studies, Ann Arbor, 1975), at p. 5.  27 M.B. Hooker, A Concise Legal History of South-East Asia (Clarendon Press, Oxford, 1978), at p. 29.  28 In a sense Mongkut had already set the monarchy on a path along this route: his first act was to pledge loyalty to the people, as if his accession was a kind of social contract. See Engel, Law and Kingship in Thailand During the Reign of King Chulalongkorn, supra note 26, at p. 7. Indeed he claimed that the King was only human and not divine. This had not previously been done. For a very clear statement of royal absolutism, see Chulalongkorn’s speech of 1888, as reported by Engel, ibid., at pp. 17–18. See also Prince Dani Nivat, ‘The Old Siamese Conception of the Monarchy’, supra note 5, at p. 172.

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walls of the universe in characters the size of elephants. From now on the laws would be written in the Government Gazette29 in characters the size of ants. The period of reform was also to become the period of the most thoroughly absolutist monarchy under Chulalongkorn, and involved the progressive domination of peripheries, in which Siam, using Western techniques of science, warfare, positive law and colonial government, asserted the new power of the sovereign Siamese state over its own people, its ethnic minorities in peripheral or disputed regions, and in some cases its traditional enemies. As Tamara Loos30 and Thongchai Winichakul31 have set out convincingly, Siam was not simply colonised; it was in its own turn a coloniser, the mark of a true nation in the eyes of Mongkut and Chulalongkorn. Another consequence of Wako was the strengthening of Siamese public administration by the extensive reforms of Chulalongkorn from 1892;32 this involved the articulation of government (rather than governance in the form of democratic development, for which Siam was held to be unready rather than merely disinclined) into many ministries, boards and local authorities, starting, significantly, with the inauguration with German assistance of the Telegraph Office, linking Siam with the world and with its own peripheries, which now included the Lanna kingdom of Chiangmai. Government had generally conformed with religiously ordained patterns; but as Engel says, “if … there was some ‘cosmo-magical principle’ underlying the ancient ministry structure, Chulalongkorn did not hesitate to disturb the heavens in his reformation of it”.33 Chulalongkorn himself was clearly an early proponent of the law and development movement: “by adopting certain practices of the prosperous and developed countries Thailand itself can become prosperous and developed”, he said, displaying an “almost mystical faith that the promulgation of modern codes, statutes and constitutions would somehow produce a modern Thailand”.34 At first development had meant railroads, printing presses, telegraphic and postal communication, the draining of swamps and the construction of sewage facilities, canals and hospitals. But Chulalongkorn also displayed great interest in how the Western countries managed to rule Asian populations with different religious beliefs and culture, and how they organised their local government in India, Burma, Malaya and the East Indies.35 Time and time again one finds that developments in Siam  
 29 Established by Mongkut in 1858. Prior to that date Mongkut had enacted many progressive laws.  30 Tamara Loos, Subject Siam: Family, Law, and Colonial Modernity in Thailand (Cornell University Press, Ithaca and London, 2006).  31 Winichakul, supra note 1.  32 Engel, Law and Kingship in Thailand During the Reign of King Chulalongkorn, supra note 26; Fred W. Riggs, Thailand: The Modernization of a Bureaucratic Polity (East–West Center Press, Honolulu, 1966).  33 Engel, Law and Kingship in Thailand During the Reign of King Chulalongkorn, supra note 26, at p. 26.  34 Ibid., at p. 2. In terms of contemporary ideas of law and development, it is not very clear whether Chulalongkorn and the Siam leadership regarded economic development as a cause or an effect of legal modernisation; in all probability it was to them simply part of the whole package that they understood as ‘development’.  35 He visited these countries variously during the regency period 1868–1872 and his travels in 1896: Loos, Subject Siam, supra note 30, at p. 97.

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were initiated because international experience, especially European experience, indicated a point where best practice, logic and pride met in a conclusive syllogism. Chulalongkorn added impetus to this approach when he created the Council of State in 1874, in a conscious transplantation of the French Conseil d’état.36 The Council of State, soon replaced by the Legislative Council, was ultimately reinstated and developed into a sophisticated organisation of several branches, designed principally to draft laws and scrutinise individual grievances against the administration, the latter function being surrendered to the Administrative Courts as late as 1999.37 It also commenced an index of laws, starting, logically enough, in 1851, the year of Mongkut’s ascension to the throne. The Council of State replaced a royal scribe, the Ar-luk, who had drafted laws for royal scrutiny and amendment. Then came the resolution of the fundamental legal problem of Chulalongkorn’s reign. Was Siam to adopt the English common law, or the French civil law, or somehow develop its own legal traditions based on the Law of the Three Seals of 1805 and the thammasat, or else some combination of these ideas?

V  THE LAW OF THE THREE SEALS

The issue is not whether we can preserve our traditions: it is whether our traditions can preserve us. Lu Xun

The Law of the Three Seals38 was in its own limited way a reforming measure which was designed to ascertain, crystallise and index existing Siamese law based on the religious law, the thammasat, and royal decrees, the rajasat. The Law of the Three Seals came about as a result of a series of events in the late eighteenth and early nineteenth centuries.39 In 1767 the Burmese sacked Ayutthaya and the legal archives were burned to ashes. Few texts survived. A decided case under King Rama I, that of Amdaeng Pom in 1804, was decisive in spurring the necessary restatement of the law. The judges granted a divorce to a woman against a blameless husband, the woman having herself committed adultery with one of the judges in the case. This decision was to all appearances in accordance with existing written law, as the judges confirmed. The husband appealed to the King, who refused to believe that the text could be correct as the result flew in the face of his sense of justice, and he ordered the apparently polluted streams of justice, that is to say the surviving law texts, to be checked and cleansed, as other errors might have crept in. A commission was set up to perform this task.  
 36 Engel, Law and Kingship in Thailand During the Reign of King Chulalongkorn, supra note 26, at p. 26.  37 It now has six bureaux and nineteen directorates; it falls under the Prime Minister’s Department. The Council of State is responsible for many matters relating to public law, including drafting, translation, training and issuing legal opinions. For further information (in Thai), see <http://internet.krisdika.go.th/about_ 01.jsp?head=1&item=1>.  38 Von Mehren and Sawyers, supra note 7.  39 See Yoneo Ishii, ‘The Thai Thammasat’ in Hooker, Laws of South-East Asia, supra note 6, pp. 143– 203.

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The resulting Law of the Three Seals was made in three official copies each bearing the seals of the ministers of the North, East and South. The Law was a considerable advance, or at least an improvement, in some of its elements. It was a 41volume, well-organised index and restatement, shorn of irrelevant rhetoric and symbolism, clear in its instructions and penalties and in most of its substantive provisions. Its principle merit was in melding successfully, in a way which Mongkut must surely have found pleasing, the main principles of the unwritten (customary) and written (religious and royal) laws of Siam, described as the roots of the matter (thammasat) and the branches (rajasat). In some ways one can find parallels in the contemporary constitution-making process, the discourse of which involves a clear emphasis on the ways in which errors have crept into the previous constitution which require correction, all constitutions being nonetheless required to conform to certain unchanging principles.40 The Law of the Three Seals is worthy of detailed consideration.41 It embodied law that, as is typical of pre-colonial laws in Asia, depended immeasurably on categories rather than principles,42 and therefore the status of parties, expressed, for example, through the sakdi-na or feudal system.43 The people were themselves divided into four classes, the lowest, slaves, being divided into seven subclasses. Seven kinds of person could not present a plaint; even a free man could only bring a plaint through a higher person, his patron; 33 types of person could not give evidence without consent of both parties; and even those who could were divided into three categories according to credibility based on social status alone. Even wounds were classified and compensated according to status. 44 The Law protected legitimate public interests (as perceived by officials), but involved some constraints on official powers. It involved heavy penalties for all kinds of infraction, which were seen as contrary to the principles of the cosmos itself. To take the example of land clearance, the Law required a person who cleared land for farming to notify the appropriate authorities, who were mandated to write a document recording the fact and leave it with that person. So far, very sensible, one might say. Anyone who cleared land for farming without such notification was, however, liable to punishment in six ways and, if the King forbade killing him, the tax he avoided should be hung around his neck for three days, and then he should be fined four times the amount.45  
 40 Andrew J. Harding, ‘Dynamics and Problems of Constitution-Making in Asia and Beyond’ (Paper presented at King Prajadhipok’s Institute Congress VIII, Bangkok, 5 November 2006).  41 Ishii, supra note 39; Somphong Sucharitkul, ‘Thai Law and Buddhist Law’ (1998) 46 American Journal of Comparative Law Supplement pp. 69–86; Andrew Huxley (ed.), Thai Law: Buddhist Law, Essays on the Legal History of Thailand, Laos and Burma (White Orchid Press, Bangkok, 1996). See especially Michael Vickery, ‘The Constitution of Ayutthaya: An Investigation into the Three Seals Code’ in Andrew Huxley, Thai Law: Buddhist Law — Essays on the Legal History of Thailand, Laos and Burma (White Orchid Press, Bangkok, 1996), pp. 133–210; Sarasin Virapol, ‘Law in Traditional Siam and China: A Comparative Study’ (1977) 65 Journal of the Siam Society pp. 81–97.  42 Hooker, A Concise Legal History of South-East Asia, supra note 27.  43 H.G. Quaritch Wales, Ancient Siamese Government and Administration (Bernard Quaritch, London, 1934); Loos, ‘Issaraphap’, supra note 23.  44 Hooker, A Concise Legal History of South-East Asia, supra note 27.  45 Von Mehren and Sawyers, supra note 7, at p. 79.

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In family law traditional Siamese law as set out in the Law of the Three Seals recognised polygamy, but gave precedence to major wives (mia luang) over minor wives (mia noi) and conjugal power to the man. Being based on status, the Law recognised this distinction both in terms of inheritance rights and in terms of compensation for committing adultery. Men had much higher legal status than women. For example only the wife, not the husband, could be guilty of adultery, unless the man committed adultery with a married woman, an offence resulting in the justifiable killing of both. Although Siamese law did not have a doctrine of binding precedent, the concern with consistency can be seen in the creation of the Law of the Three Seals, and its legal profession was technically competent in terms of juristic knowledge and argument. Brahmin experts interpreted the thammasat, and the function of interpretation was separate both from the judicial function of trying cases and the imposition of punishment. The problems with the traditional law lay more in the institutional structure which existed to apply it than in the substance of the law itself. In particular, the complexity of the judicial system was extreme. However, one conceptual issue was particularly problematic and had significant institutional consequences, namely the lack of any distinction between criminal and civil law.46 In addition all land legally belonged to the King and although rights over it were recognised, it could not be bought and sold. The Law of the Three Seals, being a law for the guidance of officials rather than a statement of the rights of the King’s subjects, was regarded as a secret document, and a nobleman who, under the influence of the American missionary Dr. Bradley, attempted to print and publish it in 1849 was imprisoned by Mongkut’s predecessor for his pains. However, the Law was in fact published by Dr. Bradley’s press in Bangkok in 1862–1863. It was finally officially made public in 1883 — right at the beginning, ironically, of the law reform process which resulted in its complete obliteration. Mongkut in fact played an important part in ensuring that the law became known to his people.

VI  SIAMESE THEORY AND PRACTICE OF LEGAL TRANSPLANTATION

The making of law to deceive the world, i.e. the appearance of a law that is not true in reality, appears to me to be a downright lie. King Vajiravudh

Prince Rabi, one of the first Asians to study law at Oxford47 and qualify as an English barrister, became Minister of Justice in 1892, and advocated following the English common law. He set up a law school under the Ministry in which he taught students to deal with legal problems using English law, much as Oxford students  
 46 See the discussion of private prosecutions below in Pt VI, ‘Siamese Theory and Practice of Legal Transplantation’, pp. 323–326.  47 But not the first Siamese prince: Mongkut’s son Prince Sawat graduated from Oxford before him: Loos, Subject Siam, supra note 30, at p. 49.
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were required to apply Roman law. Under his influence, the courts also began to use English precedents where Siamese law was outmoded or did not deal with the problem. However, most of Siam’s foreign legal advisers — forerunners of today’s law and development consultants and first introduced, as it happens, by Mongkut who employed no less than 84 foreigners in various positions — were French, Belgian, or sometimes Japanese, while the public law and administration advisers tended to be British or American.48 A crucial figure during Chulalongkorn’s reign was his Adviser-General, Belgian jurist Gustave Rolin-Jacquemyns. The example of Japan,49 which had adopted the German legal system, became determinative, and from 1895 the civil law held sway. Japan defeated Russia in war in 1905, and was becoming equal in power to the European states. This showed that to follow the civilian development path to legal modernity, drastic as that was, did not mean the abandonment of traditional culture or religion, and had in fact led to the end of extraterritoriality in the case of Japan, which was in turn able to demand extraterritoriality of Siam. Moreover, the civil law was easier to follow, apply and teach, and seemed more doctrinally certain, complete and rational than the common law with its analogical techniques, remedial bias, and fact-based judgments. The civil law suited the authoritarian style of the time and the simplicity of Chulalongkorn’s theory of law and development. However, English law was sometimes favoured under Prince Rabi’s ministry, and did have influence in some areas. In addition, the British colonial legal model, which incorporated legal pluralism, was adopted in respect of the Southern Malay, Muslim periphery, where Islamic personal law was recognised and enforced through syariah courts.50 The resolution of the problem of the general law meant in due course the wholesale reform of the law and the legal system. The law of evidence was first reformed under an Act of 1895; this was followed by a Temporary Criminal Procedure Act of 1897; and the Civil Procedure Act of 1897. The civil law took precedence, especially with the appointment of a Legislative Council in 1897 to draft the Penal Code, and another in 1908 to draft the Civil and Commercial Code. Such was foreign influence over lawmaking that English remained the language in which laws were first drafted, before being translated into Thai. It was not, in general, the case however that law was simply transplanted without thought as to its effect and its propriety in Siamese society. Nor was it the case that law reform was merely dictated as though Siam was a colony, the foreign and Siamese members of the drafting bodies carrying equal weight, as the principal Japanese adviser, Tokichi  
 48 It seems that in Siamese imagination Francophones were best for law, Anglophones for government, Dutch for water management, and Germans and Danes for scientific, technological and military undertakings. Harvard law professors were employed as Advisers-General until as late as 1940: see Loos, Subject Siam, supra note 30, pp. 29–71.  49 Engel, Law and Kingship in Thailand During the Reign of King Chulalongkorn, supra note 26, at p. 76.  50 Loos, Subject Siam, supra note 30, pp. 72–79. This very example, however, shows that national legal reform through the mixing of European and Asian legal traditions in a legally pluralistic manner might have placed Siamese law in an implicitly subaltern position. Perhaps it would also have sent to the periphery and the international community some rather uncertain political messages about Siam’s intentions.

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Masao averred in the Yale Law Journal.51 René Guyon, who was a key adviser in the codification process, wrote as follows: [The drafting committee] avoided indulging in the too-easy plan of copying any foreign code, perfect as it might be, and of transforming their provisions with slight alterations, into Siamese legislation. They have for each draft pursued the same methods: first, they have made a general study of the matter as it stands in the existing Siamese texts … and in the principal foreign codes … important decisions have been made and a good knowledge of the local needs has in turn enabled the Commissioners to submit drafts which do not consist only in theoretical terms but are framed according to the actual and real requirements on the country.52 The law reform documentation consistently makes mention of realistic expectations, generational change, social impacts, and the need for ideas and habits to develop over time. It would be wrong to imagine that Siamese kings or their legal advisers thought that Western laws were appropriate in every respect to Siam, or could be implemented wholesale without difficulty or unintended consequences (it is instructive to note that in this respect the law and development movement has not come very far at all since the early twentieth century). In fact their deliberations indicate a deep preoccupation with these problems, as is shown by Vajiravudh’s memorandum53 of 1913 concerning marriage law, which agonises over the religious appropriateness and social effects, especially on women and children, of a move from polygamy to monogamy — an issue on which the foreign advisers felt, and clearly stated, that it was improper for them, having insufficient local cultural knowledge, to render an opinion.54 In the event the King’s advisers were against a reform of family law along the lines of European monogamy and personal morality, pointing to Siamese culture around gender relations and expectations.55 However, by 1935 matters had changed and the resulting Book V of the Civil and Commercial Code, while retaining some aspects of traditional personal law, was largely indistinguishable from European laws on marriage and divorce, save that informal divorce was recognised. Local government elections, often the forerunner of national democracy, were rejected for Bangkok on the grounds that they would place the city in the hands of a Chinese majority.56 Some traditional laws, especially those relating to Buddhist monks, survived the reforms. For example, the law disqualified Buddhist monks, priests and novices from standing for or voting in, an election, a  
 51 Tokichi Masao, ‘The New Penal Code of Siam’ (1908–1909) 18 Yale Law Journal pp. 85–100.  52 R.H. Hickling, ‘The Legal System of Thailand’ (1972) 2 Hong Kong Law Journal pp. 8–53, at p. 9. See also René Guyon, L’Oeuvre de Codification au Siam (Imprimerie Nationale, Paris, 1919); Georges Padoux, ‘Report on the Proposed Penal Code’ in Hooker, Laws of South-East Asia, supra note 6, at p. 580.  53 Quoted at length in Adul Wichiencharoen and Luang Chamroon Netisastra, ‘Some Main Features of Modernization of Ancient Family Law in Thailand’ in David C. Buxbaum (ed.), Family Law and Customary Law in Asia: A Contemporary Legal Perspective (Martinus Nijhoff, The Hague, 1968), pp. 92–97.  54 See, for example, Padoux, supra note 52.  55 Loos, Subject Siam, supra note 30, pp. 155–172.  56 R.D. Craig, ‘Municipalities in Siam’ in King Prajadhipok’s Ideas on Democracy (KPI, Bangkok, 2004) (in Thai).

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principle so strong that it survived scrutiny by the Constitutional Court in 2002 in a case relating to freedom of religion under the Constitution.57 In family law, divorce by mutual consent and rules regarding matrimonial property were also retained. A clear consensus also emerged among both Siam’s rulers and its foreign experts that Siam could not democratise until its population reached a higher level of education, and public law therefore developed only slowly.58 But did the reformers, even with their obviously sincere and perceptive intentions, in the end, and in general, actually do what they said they were doing? When land tenure was reformed by the Land Law of 1905 it was done according to the Napoleonic cadastral system. A cadastral survey was commenced in 1901 and land titles began to be registered according to the Torrens system under the new law from 1908.59 A clearer example of Mongkut’s case for reform could hardly be imagined. All that was true of states was also true of individual land tenure. Science alone could define the precise objects of land titles and modern law alone could append to them with precision rights and registered status, making them indefeasible and certain enough to raise credit, and to be bought and sold on the open market. Although there are no doubt very many good reasons to reform land tenure, it looks as though in the case of Siam the main reason was that “the land tenure law was simply swept towards the new (Western) system along with most of traditional Thai law: all law had to be ‘modern’”.60 Registration, although as we have seen not wholly unknown under traditional law, is a key concept of modern law: once land titles and marriages are legally valid only if registered, one has a modern legal system. As discussed earlier in this chapter,61 this and other experiences in legal borrowing in Siam bring into question the commitment of the Siamese to adaptation rather than adoption. Criminal law was another major area selected for civilian-style codification with the Penal Code of 1908, which however was also influenced by Anglo-Indian, Belgian, Dutch, Italian, Egyptian, Danish, Hungarian, and Japanese, and not just French and German, precedents, although French law predominated in its influence.62 The same year saw the creation of the Supreme Court and a complete reorganisation along Western lines of the highly complex judicial system with its myriad courts, which was further reformed in 1934. Work also began on revising the  
 57 A J Harding, ‘Buddhism, Human Rights and Constitutional Reform in Thailand’ (2007) 2:1 Asian Journal of Comparative Law pp. 1–23.  58 The reiteration of this position, explicitly paternalistic as it undoubtedly is, should not occasion any surprise; Britain, after all, adopted general compulsory primary education in 1905, barely a generation before Siam in 1921, and general unrestricted franchise, including women, only in 1928, just four years before Siam.  59 Von Mehren and Sawyers, supra note 7. The law was not consistently implemented, however. By 1933 only six areas were covered.  60 Ibid., at p. 85.  61 See Pt III, ‘A Painful, Disruptive Moment’, pp. 311–313.  62 See Apirat Petchsiri, Eastern Importation of Western Criminal Law (Fred B Rothman & Co, Littleton, 1987).

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Civil and Commercial Code.63 The Code, dealing with transactions and property, was introduced piecemeal. A trademark law was passed in 1914; the first two books of the Civil and Commercial Code in 1925; the remainder was completed by 193564 in the wake of the military coup of 1932, using French, German, Swiss and Japanese models, but with some resonances of the English common law. The civil and criminal procedure codes were also introduced only in 1935. The Civil and Commercial Code, in structure, method and substance, is instantly recognisable to the civil lawyer. Book I covers general principles including legal persons; Book II, obligations and delict; Book III, specific contracts and commercial law in general; Book IV, property; Book V, family law; and Book VI, succession. One of the few provisions that acknowledge anything like pre-existing law is s 4, which deals with sources of law: The law must be applied in all cases which come within the letter or the spirit of any of its provisions. Where no provision is applicable, the case shall be decided according to local custom. If there is no such custom, the case shall be decided by analogy to the provision most nearly applicable and, in default of such provision, by the general principles of law. It is inevitable to conclude that, despite the prevailing sensitivity and sophistication regarding the theory of legal transplants, what determined the result had relatively little to do with Siamese legal culture or tradition, or theories of comparative law, but rather with administrative convenience. One Thai commentator goes so far as to say that the modern European legal system, accompanied by mature jurisprudence, was rational and systematic, and easy to impart to other countries. It was quite reasonable that the non-Western countries received it as a whole, whether voluntarily or not.65 Reforming public administration, criminal law, private law, and property law was one thing, but real struggles ensued over proposals to abolish the polygamous marriage system. King Vajiravudh’s (Rama VI) consistent advocacy of the adoption of European morality was, understandably, not enough to secure reform, especially given his own concerns expressed in the 1913 memorandum. The bouleversement of Siamese law and administration was dramatic enough, but interfering in people’s sexuality and especially that of powerful officials, was going a stage too far.66 Only in 1935, the year of Prajadhipok’s abdication following the 1932 coup, was marriage law reformed and the Civil and Commercial Code thereby finally completed.67 A significant point had now been reached when women became for most purposes  
 63 These measures contributed to an early change in extraterritoriality when Britain and Siam signed the Bangkok Treaty of 1909 (signed and entered into force 10 March 1909) placing British subjects under the Siamese courts. This did not prevent the British Minister in 1916 demanding that the King dismiss the Head of the Dika Court: Hooker, ‘The “Europeanization” of Siam’s Law 1855–1908’, supra note 6, at p. 533.  64 Loos, Subject Siam, supra note 30, at p. 175.  65 Kasemsup, supra note 5, at p. 290.  66 Loos, Subject Siam, supra note 30, at pp. 155–172.  67 Hickling, supra note 52, at p. 36.

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formally equal with men, subjects became citizens formally equal with each other and entitled to vote, and Siamese law became formally equal with Western law. Chulalongkorn was the last king to have more than one wife (but polygamy went out in style: he had around 150 minor wives and 85 children). On 24 June 1939 ‘Siam’ became ‘Thailand’, the ‘land of the free people’, just a year after the final revocations of the extraterritoriality provisions. In an article entitled “Strategic Siam Changes its Name to Thai”, Life magazine of 31 July 1939 depicted Thai women marching in the parade in a uniform which was half Thai and half European: “[o]nly the rich still practice polygamy” it commented, “and women in Thai have many rights”. The army tanks in the parade sporting the new flag of Thailand, however, were still being made by Vickers in England. By this time Thailand was under the proto-fascist government of General Phibulsongkram and within less than three years, Japanese forces, with Thai complicity, had effectively ended European power in south-east Asia. But European law remained, as it did in Japan itself. European law was in essence an all-or-nothing project. That was the deal. In the words of Chulalongkorn, what was needed was a “new vessel made out of stronger planks”.68 Whatever one’s view as to the proper relationship between the substance of transplanted Western law and traditional law as such, there can be no doubt that the traditional judicial system was in a disastrous state by the late nineteenth century and every reform of the judicial system that was accomplished under Chulalongkorn entailed a considerable improvement over what went before. The traditional judicial system was an area of chaos, complexity, corruption, arbitrariness, procedural vagueness, delay, inefficiency, and popular distrust. There was no real separation of executive and judicial powers, and the appellate system in particular was inordinately complex, ineffectual, and also (perhaps fortunately for would-be appellants) hardly available in practice.69 Many important changes were made in legal institutions during Chulalongkorn’s reign. Principally these involved the unification and rationalisation of the judicial system and its separation from the King and the executive.70 By 1908 all the courts had been brought under the Ministry of Justice; the distinction between civil and criminal law had been recognised; a public prosecution system had been created; and the principle of judicial immunity adopted. The rule of law and basic rights were enhanced by the gradual abolition of slavery by degrees during the period 1874–1912; the implementation of the principles of consistency and national reach of the judicial system; equality in place of privilege, immunity and local variation; due process and rights of accused persons; and access to justice for the lower orders. Rules dealing with procedure, evidence, punish
 68 Engel, Law and Kingship in Thailand During the Reign of King Chulalongkorn, supra note 26, at p. 18.  69 Ibid.  70 Ibid.

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ments, and appeals were also clarified: “[t]he judiciary had become an organ for the interpretation of man-made laws, not absolute moral truths”.71 It has been seen that in the context of the reforms the legal culture of Siam was not considered at all irrelevant in the reform process and the choices that needed to be made. Similarly, it proved neither wholly irrelevant nor wholly pliable when it came to the implementation of the reforms. This is not the place for a thorough survey of the effect of the reforms over an entire century, but we may consider briefly an example elaborated by David Engel that provides great insight into the problem of legal culture in both of these contexts of reform and implementation.72 The traditional law of Siam did not distinguish criminal from civil law. Yet as we have seen the new legal system of Siam from 1908 embraced this distinction (initiated with the Civil Procedure Act of 1897) at a fundamental level in its codes, its courts and also its organisation of legal personnel. One issue that arose was whether to retain the principle, evident in traditional law, that a citizen could bring a private criminal prosecution. This is a feature that is seen — although it is not in truth of any great importance — in both common law and civil law systems, the reasoning being that the state has somewhat different (that is purely public) interests in pursuing criminal cases when compared to victims. It was decided to retain the private prosecution primarily because the role of public prosecutor had only just been created, which meant that private prosecutions could perform a useful function as either a check on, or as a supplement to, public prosecution. Indeed it was possible to combine both types of prosecution, with the private citizen acting as coprosecutor, which would tend to ensure the presentation of the best possible case for the prosecution, the citizen, representing the victim’s perspective, being able to add some value and resources of his or her own. What happened in practice was that private prosecutions were often mounted as supplementary to civil claims, for example in debt-recovery cases or road accident cases. Here the prosecution added pressure on a civil defendant in tort or contract to settle the matter or increase the compensation paid to the plaintiff. In most such cases the matter was settled privately before it got to trial.  This example shows that, although the written law itself did not, and does not, provide any real hint of Thai legal culture, a true picture of the reform process and the practical operation and use of the law provides more than a hint of it: it is in effect the whole picture, in the sense that code and custom in the provincial court of Chiangmai in the 1970s, as Engel shows, modified each other, creating a unique legal culture.73 In general there is little doubt that pre-code elements of legal culture are still present in Thailand and affect profoundly the practical application of the codified, modernised law, in particular respect for status and hierarchy; a reluctance  
 71 Ibid., at p. 84.  72 David M. Engel, Code and Custom in a Thai Provincial Court: The Interaction of Formal and Informal Systems of Justice (University of Arizona Press, Tucson, 1978).  73 Ibid. For a similar study relating to injury cases in contemporary Chiangmai, see David M. Engel, ‘Globalization and the Decline of Legal Consciousness: Torts, Ghosts, and Karma in Thailand’ (2005) 30 Law and Social Inquiry pp. 469–514.

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in many contexts to assert rights; a distinct preference for negotiation over litigation; and belief systems which colour differently from the law the notions of rights, wrongs and responsibilities.74 At the same time the law embodies “great judicial deference to written forms and to official court documents [which] … take priority over informal customary practices”, as one would expect in a system based on the civil law.75 If the common law method with its built-in adaptability and relativism had been used instead, there is chance that the formalism of European law would have been moderated in practice to fit more closely with custom, culture, and circumstance. The last incursions into Siamese territory by European powers occurred in 1909 when Siam entered into a treaty with Britain defining the boundary between Siam and British Malaya,76 and a nationality law, yet another mark of modernity in its definition of the conditions, limits and incidents of citizenship, was passed in 1913. Siamese astrology, along with many aspects of traditional Siamese law and culture, had been left far behind.77 And yet progress towards legal-rational modernity had been slow in materialising, the reformed law and persistent legal culture affecting each other in profound ways.78 It was taking longer than some expected for Thailand to modernise through the agency of law, an experience still very familiar these days in the context of law and development projects. Despite protests by René Guyon and others, the law reforms had, by the time of their completion in 1935, made little concession in practice to Thai conditions and culture; but they had also made little impact on them in many areas. In particular the reform of law had not been accompanied by any significant democratic or public law reform. A reformed constitution would take much longer to materialise.79 In retrospect it can be argued that all this was a path wrongly taken. Apirat Petchsiri, for example, in a penetrating study of the reception of Western criminal law, argues that Siamese law was developing along its own path, and that the adoption of foreign law was sudden, ill-advised and unsuccessful.80 It is possible that an  
 74 William J. Klausner, ‘Law and Society’ (1998–2000) VII Chulalongkorn Law Review pp. 1–29; Engel, Code and Custom in a Thai Provincial Court, supra note 72.  75 Engel, Code and Custom in a Thai Provincial Court, supra note 72, at p. 52.  76 By an earlier treaty of 1883 a curious judicial system was put in place for the semi-autonomous Lanna kingdom of Chiangmai, now under Siam’s control. A Siamese Judge-Commissioner sat with a British adviser: Hooker, ‘The “Europeanization” of Siam’s Law 1855–1908’, supra note 6, at p. 546.  77 However, at a very formal level Siamese astrology is still used to ascertain auspicious days or hours for royal acts. On 20 June 1968 the King promulgated a new Constitution at an hour and time dictated by the royal astrologers: Hickling, supra note 52, at p. 13. At the societal level divination is still widely believed in and practised in Thailand: Engel, Code and Custom in a Thai Provincial Court, supra note 72, at p. 60; H.G. Quaritch Wales, Divination in Thailand: The Hopes and Fears of a South East Asian People (RoutledgeCurzon, London, 1983).  78 Klausner, supra note 74.  79 Pinai Nanakorn, ‘The Remaking of the Constitution in Thailand’ (2002) 6 Singapore Journal of International and Comparative Law pp. 90–115; Andrew Harding, ‘South East Asia 1997–2006: Two Case Studies on the Politics of Law and Development’ in Christoph Antons and Volkmar Gessmer (eds.), Globalisation and Resistance: Law Reform in Asia since the Financial Crisis (Hart Publishing, Oxford, 2007).  80 Petchsiri, supra note 62; Ted L. McDorman, ‘A Review of Eastern Importation of Western Criminal Law: Thailand as a Case Study’ (1988) 22 University of British Columbia Law Review pp. 401–412;  

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ultimately more successful reform would have derived from a gradual process of absorption of foreign influence mediated through Siamese concepts and processes, in which the best and most familiar of Siamese laws and in particular dispute resolution processes and forms of social control, might have been retained. Indeed in 1885 Prince Phitchit in an essay called “Justice Considered”, had taken very much that view.81 Following the common law in certain areas, as happened briefly in the courts at the beginning of the reform period, might not necessarily have involved such a drastic form of imposition of foreign law on an uncomprehending population, since the common law with its open texture and fluid, pragmatically based concepts and emphasis on remedies rather than doctrine, was already mixing with Asian laws in Britain’s Asian territories such as India, the Straits Settlements and the Malay States, in a way that was not evident in the case of French law in Indochina or Dutch law in Indonesia.82 One could imagine that wise judges, informed by, but not obliged to follow, the common law, might have moulded Siamese law into an appropriate mixture of the modern and the traditional. But as we have seen, the path of legal positivism was in the end more inviting to the wisdom of the time. Developing Siamese law along its own lines seems not to have been even seriously considered as a long-term solution; that would have been too feeble an effort to instigate change and would have effectively meant, it might well have been said, allowing the astrologers and their like to return to power. In any case, time was clearly somewhat of the essence in spite of all the cautious statements about the nature of legal change. The prevailing policy was in fact, with regard to the general law if not constitutional matters, and quite contrary to Prajadhipok’s statement to the New York Times, actually to adopt rather than adapt. As we have seen, in contrast to the common law as applied in Asia there is not much reference to or acknowledgment of Siam’s legal traditions and practices in any of the great codes. Equally, there is little opportunity for judges or officials to modify the law in its practical application. While lip service was paid to the need to preserve that which was good in existing law and custom, in practice what occurred was essentially a repeal of traditional law and the adoption of the entire civil law system. The representation of Thai law as “an amalgamation of indigenous and foreign laws”83 is largely incorrect: it is more correct to say that Thai law as reformed by 1935 and developed up to the present day is an amalgamation of foreign laws and Siamese/ Thai legal culture and habits  
Ted L. McDorman, ‘The Teaching of the Law of Thailand’ (1987–1988) 11 Dalhousie Law Journal pp. 915–930.  81 Engel, Law and Kingship in Thailand During the Reign of King Chulalongkorn, supra note 26, at p. 10.  82 Andrew J. Harding, ‘Comparative Law and Legal Transplantation in South East Asia: Making Sense of the “Nomic Din”’ in David Nelken and Johannes Feest (eds.), Adapting Legal Cultures (Hart Publishing, Oxford, 2001), pp. 199–222; Andrew J. Harding, ‘Global Doctrine and Local Knowledge: Law in South East Asia’ (2002) 51 International and Comparative Law Quarterly pp. 35–53; Hooker, ‘The “Europeanization” of Siam’s Law 1855–1908’, supra note 6.  83 Frank C. Darling, ‘The Evolution of Law in Thailand’ (1970) 32 Review of Politics pp. 197–218, at p. 197.

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of thought. The logic, if not the actual rhetoric, of the official view was that the modern Western legal system was a totality, a piece of reason which if swallowed at all had to be swallowed whole. The codes were eclectic and pluralistic only in that they were not dominated by one strand of the civilian or common law traditions. What really appealed in the last analysis was “the continental tradition of codification in which the leading principles of Roman jurisprudence prevailed in logical form with scientific arrangement”.84 Having said that, it is also the case that distinctively Thai elements can be found in Books V (family law) and VI (succession) of the Civil and Commercial Code, as one would expect, although these are presented in civilian dress. The result of this if one looks at Thailand since 1935 is that the instruments and incidents of modernisation, its distortions, its asynchronistic character, by virtue of which cultures and innovations continue to interact in complex ways as they did at Wako, have resulted in a far less linear or obviously modernising path than either Mongkut or any of his successors before the present reign could have foreseen. Indeed the above account of Thai legal history begs many questions for legal scholars and others to answer: why, for example, Thailand still has military coups (seventeen since 1932, the latest in 2006), and a monarchy which, albeit no longer absolute as under Mongkut, influences political events in a decisive but sometimes unconstitutional manner; why a Muslim insurgency persists in the south and widespread corruption and lack of observance of law and legal form are commonplace — even in the capital city, and even by parts of the state such as the army, the police and the Prime Minister? Why does Thailand continue to treat some citizens and others unequally, and adhere to an ‘entourage’ social system in politics and other social contexts? Why is polygamy still practised in certain respects? And why is it that laws no longer reflect social reality,85 enacted to satisfy the diplomacy of international trade and investment, and why does it have constitutions that apparently do not work and last for only a few years? The answer is of course that even after a century or more of legal reform, there are still many disjunctions between law in the books and law as a social and cultural artefact. The outcome of Wako is still, even now, deeply problematic. It is not so very surprising then that, in spite of Mongkut and Chulalongkorn, whom they revere, Thai people in their daily lives, when confronted with problems and choices are much more likely to trust religion or astrology or the King in political matters rather than the law or the Constitution.

VII  COMPARATIVE LAW, RELIGION, AND THE CONSTITUTION

Truth is stranger than fiction because fiction is obliged to stick to possibilities.  Mark Twain  

 84 Thanin Kraivichien, ‘The Legal System’ in Thailand 1964 (Government of Thailand, Bangkok, 1965), at p. 8 (emphasis added).  85 Klausner, supra note 74.

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Speaking of constitutional reform, Siam legal adviser, Harvard law professor and US Ambassador, Francis B. Sayre, stated in a 1926 memorandum to King Prajadhipok: What works well in Great Britain might work disastrously in Siam. Siam should not slavishly copy the system of any Western nation, but should evolve out of her own experience what seems best adapted to her own genius and conditions.86 He also wrote in 1927 that “in every country the successful growth of municipal government has been found to be vitally dependent upon efficient financial supervision”, noting at the same time with regard to the existing and largely ineffective and unenforceable local government law that “the most perfect legislation conceivable will be of little use unless its proper execution and administration can be guaranteed”. Sayre’s statements form an example of the conundrum of legal change which has still not been solved: how could society change without modern law? But on the other hand, how could modern law effect change unless society would change first? R.D. Craig, a British adviser on local government in 1927 wrote similarly about: The great patience … required, and how wrong it is to judge by adult standards the infant’s first tottering footsteps …[and] the difficulties which confront an administration in endeavouring to plant the seeds of local self-government in small urban areas, to the inhabitants of which the whole conception of disinterested work for the common good is novel and often unintelligible … it may not be found possible to make very much solid progress until a generation grows up which has had the benefit of the present system of free and compulsory education.87 These statements echo Chulalongkorn’s response to an 1887 memorandum from eleven princes who had been educated in the West, suggesting a shift to a constitutional, parliamentary form of government. A parliamentary form of government would be difficult, he argued, when so few Thais would be able to perform parliamentary duties; administrative reform had to come first, in any case. Both of these arguments leave the door cleverly (or perhaps enticingly?) ajar. The advisers as well as the Chakri kings, at least up to Prajadhipok, were at any rate clearly of the view that public law reform, unlike private law reform, could wait, despite the creation of an independent bar in the 1920s and the democratic pressures that led to the 1932 coup. As Reynolds sets out, applying Geertz’s theories of religion, law and society to Thailand, the discourses of religion through which a basic world view is constituted have an extensive overlap with the discourses of law; this dual aspect of religion (which in terms of this chapter encompasses what we have called divination and calculation) is expressed through the two wheels of the dhamma, that is the ecclesiastical or monastic law of the vinaya, and the secular or royal law of the thammasat,  
 86 King Prajadhipok’s Institute, Thoughts of King Prajadhipok on Democracy (KPI, Bangkok, 2004).  87 Ibid.

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which formed the basis of the Law of the Three Seals.88 It was Mongkut’s life mission, accomplished at Wako within days of his death, to identify true Buddhism with a certain rationalistic strain … discerned within the early Buddhist texts and — on that basis — to reconstitute the tradition so that it would not be in conflict with the new ideas and institutions being absorbed from the West.89 This was the crucial change that set the scene for the legal revolution of 1892– 1935, brought about by Chulalongkorn and his two sons and immediate successors, Vajiravudh and Prajadhipok, which had the eventual consequence, in the 1932 coup led by the right-wing militarist Phibul Songkram and the leftist lawyer Pridi Phanumyong, of undermining completely the unquestioned authority of the King and taking Siam further along the path of modernisation by asserting the relevance of Western ideas of public, not just private, law. That Mongkut himself would have recognised or had intended it is debatable — probably he would not. The same is probably true even of Chulalongkorn, who did so much, in his admittedly slightly ambiguous way, to bring about the eventual and gradual development of public law in Thailand. But Wako eventually led to what Reynolds calls a “civic religion”, which is still immediately recognised in contemporary Thailand, and which conditions its public law and national discourse, in which Nation, Religion and Monarchy (Chat, Satsana, Mahakesat) form a virtuous circle of mutually reinforcing ideas, all of which have distinctive legal resonance. Reynolds, along with early Thai constitutionalists, would add to this triptych Rathathammanoon, the Constitution. In view of the adoption of eighteen constitutions since 1932 and the abrogation of the state-ofthe-art 1997 Constitution by the coup of 19 September 2006, one might say that the Constitution has in the last analysis failed to take its place as the fourth segment of the virtuous circle. As Fred Riggs put it more than 40 years ago — and there is still much truth in his assessment that [t]hese constitutional documents cannot be taken seriously as binding statements of the rules of the political game, as expressions of fundamental law. It is apparent that, whenever important shifts in the personnel of the ruling clique took place, the previous charter was suspended to permit the promulgation of new rules more compatible with the interests and inclinations of the winning group … constitutionalism was designed not so much to constrain the rulers as to facilitate their rule.90 However, one important counterpoint to the cycle of coups and constitutions is the persistence of the idea at least of a democratic constitution, which must embody certain essential features (the phrase often used in Thai legal discourse and documentation is “the democratic regime with the King as head of state”), which seems to be a permanent, and indeed unavoidable aspiration.91  
 88 Frank E. Reynolds, ‘Dhamma in Dispute: the Interactions of Religion and Law in Thailand’ (1994) 28 Law and Society Review pp. 433–452.  89 Ibid., at p. 438.  90 Riggs, supra note 32, at pp. 152–153.  91 A J Harding, ‘May There Be Virtue: “New Asian Constitutionalism” in Thailand’ (2001) 3 Australian Journal of Asian Law pp. 236–260.

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As an example of this denouement we can take the current situation in which Thailand finds itself (as of November 2007) under a government installed by the military at the instance of, or at least with the agreement of, King Bhumipol (Rama IX), following the coup of 19 September 2006. This situation might indeed be regarded as a legal dystopia. We should bear in mind here that the one hundredth anniversary of the Penal Code and the most significant civil and criminal justice reforms will take place in 2008. Nonetheless, as one observer put it, “until recently efforts to broaden the base of political power and erect structures of limited governmental authority, like the ancient thammasat, were vague, platitudinous and weak”.92 For ‘until recently’ we could here substitute “until the 1997 Constitution and its attempt to institute effective controls over corruption and the abuse of executive power”.93 While it would be strange to blame Wako and King Mongkut for this recent event, mailed as it were ‘through the slotted eye’ of a different (Siamese) cat in a quite different sector of space-time, there is nonetheless a connection. Mongkut’s actions ultimately replaced a system of law based on religion and traditional custom with one based on monarchical authority. In his cosmology and epistemology it seems truth was simply truth and right simply right, whether attained by religion, law, science, or royal command, and he may not have consciously intended this outcome. But if he did think in this vein he missed the point that, as Marshall McLuhan once expressed it, a change to a new technology changes not just the picture but the frame too. It is that very frame which surrounds the present, somewhat different, picture. The 2006 coup overthrew the lawfully established (albeit politically illegitimate or at least largely unpopular) Thai Rak Thai (‘Thai Love Thai’) party government, the validly enacted Constitution of 1997, the legislature, and the Constitutional Court. The coup was valid in the eyes of most Thais94 because it was justified politically in light of the actions of the government. Smiling monks and city working girls were photographed with soldiers and tanks, the guns of which were spiked with flowers and tied with yellow ribbons.95 The coup also enjoyed what was essentially the immediate endorsement of the King; and was quickly followed by an Interim Constitution setting out a new constitution-making process, and promised to bring to justice those responsible for the ‘widespread corruption’ that was an ostensible reason for the coup. The courts in Thailand have in fact routinely taken what one might call a pragmatic view that a coup d’état is not in itself unlawful: the cold
 92 Sucharitkul, supra note 41.  93 Bowornsak Uwanno and Wayne D. Burns, ‘The Thai Constitution of 1997: Sources and Process’ (1998) 32 University of British Columbia Law Review pp. 227–248; Harding, ‘May There Be Virtue’, supra note 91; Peter Leyland, ‘Droit Administratif Thai Style: A Comparative Analysis of the Administrative Courts in Thailand’ (2006) 8 Australian Journal of Asian Law pp. 121–154.  94 It was stated at the time that about 80 percent of Bangkokians approved of the coup: See, for example, Thomas Fuller, ‘In Thai Heartland, Scant Anger over Coup’, International Herald Tribune (Hong Kong and Paris), 23 September 2006, p. 4.  95 Photographs of this kind were shown in an exhibition at the National Gallery in Bangkok, visited by the author in November 2006.

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light-of-morning test of its legitimacy is merely whether the resulting government is able to govern.96 To put it another way, a successful revolution begets its own legality. One should add that in Thailand success will in practice depend to a very considerable extent on the King’s endorsement: the King no longer roars reverberatively as in Mongkut’s time, but the sotto voce and highly allusive pronouncements of King Bhumipol are nonetheless authoritative, and determinative in fact, in the sense that the rule of law machinery often cranks into action only when the King has flicked the switch and in the manner of his dispensation. In its May 2007 decision concerning the dissolution of political parties, the Constitutional Tribunal, seised of a case transferred from the abolished Constitutional Court, assumed, in line with previous decisions, that it did have jurisdiction to decide, and proceeded to dissolve the Thai Rak Thai (‘Thai Love Thai’) party but not that of its opponent Democrats.97 The events of 19 September 2006 happened in spite of the fact of their clearly unconstitutional character. The legality of subsequent laws, executive actions, and the 2007 Constitution, approved by referendum in August 2007, therefore depends on a very slender and debatable foundation. Whatever the ultimate outcome and whatever one makes of the legal justifications and political actions of the post-coup government, it is clear that it is not Rathathammanoon, or even the idea of Rathathammanoon, that validates such actions, which are strictly extra-constitutional, but the King’s decree, the rajasat, as it were. To put it another way, Thais live, not in the legal world of Hans Kelsen (despite the apparent use, or perhaps misuse, of his theory of the grundnorm in the courts), but in the legal world of King Mongkut, and we cannot begin to understand its law unless we see that over a century and a half since Wako Siam has morphed into Thailand and not Austria. It is of consummate importance to note that the King not only resolved somewhat similar crises to that of 2006 in 1976 and 1992 by acting in an extra-constitutional (or, given the Thai historical and legal context, supraconstitutional) fashion; but has also virtually instructed the judiciary98 on two recent occasions to resolve the country’s constitutional difficulties: once when the Constitutional Court considered the validity of the April 2006 election, and again when the Constitutional Tribunal considered the dissolution of the two leading political parties in May 2007.99 The ousting of the astrologers and the abandonment of tradition has led ultimately not just to the rule of astronomy, but also to seventeen military coups in the last 75 years, 18 constitutions, and 55 governments — in other words, to Thongchai  
 96 Hickling, supra note 52, at p. 12.  97 ‘The Constitutional Tribunal Disbands Thai Rak Thai’, The Nation (Bangkok), 30 May 2007, p. 1. The verdict has provoked considerable difference of opinion. One of the difficulties with it is that the penalty of five years’ disqualification from politics meted out on 111 TRT executive committee members was based on a retroactive law.  98 The piece of legal culture under discussion extends apparently to the Crown Prince too, who according to report in the Bangkok Daily News, 5 June 1987 (on file with the author), sat, robed as a judge, on one criminal case and two civil cases on 4 June 1987; King James I of England (VI of Scotland) would have approved heartily of this exercise of royal power.  99 ‘The Constitutional Tribunal Disbands Thai Rak Thai’, supra note 97.

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Winichakul’s ‘pain and disruption’; but, it is more important to note, it has involved the reigns of only three kings (and only one since 1946), the monarchy being empowered in the legal world of King Mongkut to validate or invalidate anything, including a government, a constitution, or a coup. The problem with this of course is that the rule of law itself, the template of the reforms of a century ago, is thereby undermined, when illegal acts are not only tolerated by those in official positions, but actually perpetrated by them, even if for apparently benevolent reasons such as the overthrow of a government which itself failed to respect the rule of law. Derogating from the rule of law derogates from the notion of calling the fire brigade — unless of course it is the King himself who dials the number.

VIII  SITUATING MONGKUT

Hofstadter’s Law: It always takes longer than you think, even if Hofstadter’s Law is taken into account. Douglas Hofstadter

Mongkut taught the astrologers a number of very useful things: that they should be courageous in seeking the truth; open-minded to new paradigms; and assiduous in adding to and changing their discipline, not merely resting on it. If he had not been so assiduous himself in being a good monk, a good king, a good astrologer and a good astronomer, he would probably have made a good comparative lawyer too: he was curious, determined, progressive, and justice-oriented. More importantly he made possible, in more than the purely genetic sense, the progressive reign of his son Chulalongkorn. Essentially between 1851 and 1935 one can discern four different attitudes to law and development. First, reactionary: that traditional values were best and there should be no reform (the astrologers, one supposes, fall into this category). Second, conservative: that there should be reform but it should be modest and mediated through Siamese concepts and institutions (Prince Phitchit and probably Mongkut himself fall into this category). Third, gradualist: that there should be fundamental reform in most areas but it should be gradual and should not encompass political institutions, notably the monarchy (this probably describes Chulalongkorn and Vajiravudh, although the latter added a distinctly nationalist strand to the reform movement100). Fourthly, revolutionary: that reform should be thorough, speedy, and should embrace a rapid move to Western-style parliamentary democracy (the eleven princes of 1887 and the ‘young Turks’ of 1932 fall into this category). The placing of both Mongkut and Chulalongkorn on the spectrum between reaction and revolution is not, however, quite straightforward. Mongkut did not live to commence a thoroughgoing legal reform programme; Chulalongkorn did not live to complete his.  
100 It leaves Prajadhipok, however, in limbo, the latter being toppled by a coup that only by a photofinish defeated his own constitutional reform project. It is ever thus: Tsar Alexander II of Russia was assassinated in 1884 with a draft constitution in his pocket, on the way to the Duma to propose its adoption.

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Moreover, Mongkut’s nodal and in some ways also ambiguous position in Siam’s history points him in several possible directions, while Chulalongkorn was often inscrutable or contradictory in his statements. While it is not entirely unfair to judge them by what they achieved and what their achievements led to, that judgment does not give us a complete picture: we also want to know at what exactly they were aiming. There are accordingly some difficulties with the above classification. First, it demotes Mongkut into a transitional rather than seminal figure, which according to this chapter is an underestimation. Secondly, it demotes Chulalongkorn into a gradualist, which is accurate only in the sense that he was called a gradualist by those who envisaged constitutional reform, but in all other ways his reform programme was indeed simply revolutionary. Thirdly, it gives credit to neither for what followed after his death; but it will have to remain a matter of speculation whether they envisaged constitutional reform as the final, problematic item on the agenda that was left until last because it was potentially so awkwardly open-ended and contradicted their modus operandi as absolute monarchs. What does seem certain is that, whether they intended it or not, the legal reform process, as the key to modernisation, not only in fact led to constitutional reform, but was also in a sense a necessary consequence in that their actions had redefined the role of the monarchy into that of a legislator within a system increasingly based, at least in part, on rule of law principles, a change which implicitly (and increasingly explicitly) separated the monarchy and the law and made prerogative power an anomaly, or at least a fallback theory of legal authority.101 The supreme irony of this, however, is that even the 1932 coup and the classically Weberian shift to constitutional monarchy, bureaucratic rationality and a modern nation-state based on the rule of law, failed to obliterate completely the traditional view of the king as a ‘cosmo-magical’ figure, the fount of law, legislation and government. The achievements of Mongkut and Chulalongkorn were sufficiently great that, whatever their intentions, they had achieved in the Thai imagination more than human status.

IX  CONCLUSIONS

We are Siamese if you please. We are Siamese if you don’t please. Siamese cats in Walt Disney’s The Lady and Tramp, 1955

It will be evident that, while the events and sometimes strange excursions of Siamese/Thai legal development over 150 years are in many ways uniquely complex, there are also many features of it that are instantly recognisable to anybody studying Asian legal systems or law and development. The main problem in Asian legal development over two centuries has been the conflict between ‘colonial’ law  
101 An interesting example is Chulalongkorn’s dismissal of a Privy Councillor, which he justified in some detail on the basis of written law when he could have simply used his prerogative powers: Engel, Law and Kingship in Thailand During the Reign of King Chulalongkorn, supra note 26, at p. 37.

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and ‘traditional’ law, which conflict entailed in general a tendency to adopt rather than adapt European law in a somewhat undigested form, over a short period of time, and with relatively few exceptions; the reception or transplantation of European law related not only to the framework of state institutions and professional legal practice and technique, but also as we have seen in Siam’s case to large portions of the substantive law, not necessarily excluding aspects of personal law. This resulted in Asia generally in either the complete obliteration or the somewhat marginalising toleration of traditional, pre-colonial law in a form of legal pluralism. It is this legal dystopia, in which written law and legal culture become almost impossible to disentangle, let alone measure, that comparative legal scholars, social scientists and law reformers have had to confront. A fundamental historical question is whether the imposition or reception of European law has proved dysfunctional as a vector of development; but that has become a matter of academic rather than practical interest, because even the critics of colonial legality102 concede that there is no point now in attempting to go back to pre-colonial or traditional law. Too much water has flowed under the bridge since the question of legal transplantation was first addressed. The answer to the question is however probably something like a rather colourless ‘yes and no’: there have been advantages and disadvantages of adopting European law, and it is a nice form of calculation that would seek to reach a conclusion as to whether development would have proceeded further or more smoothly or in a better direction under a different, more nuanced, legal policy. It is perhaps better to see the legal legacy of law reform movements like that of Mongkut and Chulalongkorn as simply a set of ‘vantages’, that is, of legal historical facts that have to be lived with, being neither simply advantages nor disadvantages. While there should be a constant attempt to fit existing law to society’s changing expectations, and therefore to attempt to understand the cultural and sociological nature of the relationship between them, it needs to be borne in mind that existing law is also an important instrument, when used in an informed and sensitive way, to achieve social and economic development, as has consistently been assumed in Siam/Thailand since 1868 and often vindicated in practice. If it is correct that there is no going back to pre-colonial law it might be worthwhile understanding why it is so. First, laws and legal systems are notoriously difficult to transplant, but once successfully transplanted in the sense of being internalised by those who are charged with operating the system and without deeply rooted opposition or rejection or signal failure to achieve the desired results, they are equally notoriously adhesive. Lawyers and administrators in particular tend to safeguard and entrench their techniques of practice and habits of thought as if they were a religion. It seems easier to change any system compared with a legal system: in the Siamese case astronomy, maps, printing, telegraphy, waterways and railways came very far in advance of ‘modern’ law. Indeed, there no substantial difficulty at all has been  
102 See Petchsiri, supra note 62.

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recorded in the transplanting of these technological systems. Development, it seems, simply does not take place backwards: even a reactionary movement creates an entirely new McLuhan-type situation. Second, whatever the ‘vantages’ of pre-colonial law, it was ill-adapted to the world of the late nineteenth and early twentieth centuries in several respects. It embodied status rather than contract, hierarchy rather than equality, paternalism rather than emancipation. It had its virtues, but was also in some ways irrational, harsh and even cruel, rather like Western law itself at the turn of the nineteenth century. Even the Prusso-German legal system, much favoured in Asia, came into being only a generation before it reached the height of its development in Germany and its influence in Asia. Both Russia and the United States abolished slavery only in the 1860s, the same decade as Wako and only marginally ahead of Siam. Traditional law in Siam was not adapted to the economic and political imperatives of the time, any more than was traditional law in Europe. Western law, as in the West itself and proved in the long nineteenth century of 1815 through 1848–1914, brought the possibility of equal citizenship, emancipation, the rule of law, and of justice independently administered. More importantly, in the eyes of Mongkut and his successors, it offered the chance of freedom from the foreign control which Siam had always just about managed to shrug off since the time of Louis XIV, King Narai, and the 1688 Siamese Revolution.103 It is not for nothing that contemporary Thai society remains acutely proud of its freedom, its nation, its monarchy and quite literally worships its reforming kings of the demi-siècle from 1851 to 1910. Chulalongkorn in particular is regarded as having given Thais their chance of freedom and their prosperity. After all, his very first acts, as a teenage king and a former charge of Anna Leonowens, were to abolish prostration and slavery. This is not to say that the defects in traditional law could not have been dealt with by a process of eclectic reform rather than complete obliteration of traditional law. The traditional law had strength in terms of its comprehensibility, legitimacy, emphasis (at least via its customary elements) on the harmonious resolution of disputes, and intimate relation with social and religious norms. But the problem was essentially that of time. Both Mongkut and Chulalongkorn, and later also Vajiravudh and Prajadhipok, introduced enlightened reforms of Siamese law and government in line with evolving global law, but they were also fully aware of the odds stacked against Siam in the dangerously unstable world of the late nineteenth and early twentieth centuries, and against the monarchy itself in Siam’s rapidly changing politics which lurched from absolute monarchy to military dictatorship to aspiring multiparty democracy. Gradual and piecemeal law reform in a manner that would satisfy comparative lawyers and internal critics would probably have seen Siam swiftly overtaken by adverse events, whether internally or externally caused. Even as it was only astute diplomacy and rapid change defended Siam from being swallowed in the same vortex as Burma, Vietnam and Malaya; and Prajadhipok’s proposed democratic reforms were just a mite too slow in arriving. An important  
103 Hutchinson, supra note 20.

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part of the defence strategy was the maintenance of appearance. An important part of the maintenance of appearance was legal change, because legal change dampened wonderfully the gunpowder of the Europe’s gunboats and the disdain of its jurists. For these reasons Siam was forced to develop in a single generation that which had taken centuries of development and then a very rapid surge in the mid-nineteenth century in the West, even though the Chakri kings knew in their breasts, as did most of their advisers, that adaptation was preferable to adoption. The entire enterprise was filled with risk, pain and disruption — it could not be any other way, at least given the historical imperatives of nationalism and international relations. The obvious counter to this position is that even if the argument is correct, a huge price has been paid over the last 100 years of legal quasi-dystopia. Whatever advances have been made (and there are surely too many to set out here), there seems little doubt that the adoption of the European legal framework and codes has had some negative effects in terms of rendering law itself far less central to society than it is in the West. To put it another way, there is a clearly discernible rule of law deficit and Thailand, having carried the reform of its written law practically as far as it could go, is still struggling to find its legal world view. The tensions of the 1868 episode at Wako remain, essentially, unresolved.

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BIBLIOGRAPHY

A  Primary Sources
Treaties Bangkok Treaty of 1909 (signed and entered into force 10 March 1909) Treaty between Japan and Siam (signed and entered into force 25 February 1898), De Martens, Nouveau Recueil Général de Traités, deuxième série, tome XXXIII, p. 203
B  Secondary Sources
1 Books and Articles Antons, Christoph, and Gessmer, Volkmar (eds.), Globalisation and Resistance: Law Reform in Asia since the Financial Crisis (Hart Publishing, Oxford, 2007) Bowring, John, The Kingdom and People of Siam (Oxford University Press, Kuala Lumpur, 1969) Buxbaum, David C. (ed.), Family Law and Customary Law in Asia: A Contemporary Legal Perspective (Martinus Nijhoff, The Hague, 1968) Chiba, Masaji, Asian Indigenous Law: In Interaction with Received Law (KPI, London and New York, 1986) Craig, R.D., ‘Municipalities in Siam’ in King Prajadhipok’s Ideas on Democracy (KPI, Bangkok, 2004) Darling, Frank C., ‘The Evolution of Law in Thailand’ (1970) 32 Review of Politics pp. 197–218 Dhiravegin, Likhit, Siam and Colonialism (1855–1908): An Analysis of Diplomatic Relations (Thai Watana Panich, Bangkok, 1975) Engel, David M., ‘Globalization and the Decline of Legal Consciousness: Torts, Ghosts, and Karma in Thailand’ (2005) 30 Law and Social Inquiry pp. 469–514 Engel, David M., Code and Custom in a Thai Provincial Court: The Interaction of Formal and Informal Systems of Justice (University of Arizona Press, Tucson, 1978) Engel, David M., Law and Kingship in Thailand During the Reign of King Chulalongkorn (University of Michigan Centre for South and Southeast Asian Studies, Ann Arbor, 1975) Guyon, René, L’Oeuvre de Codification au Siam (Imprimerie Nationale, Paris, 1919)
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