INTRODUCTION
In the future, there will be no wars with the Yuan(2) or the Burmese anymore. The only power will be the western nations. Beware! Steer your course carefully and avoid defeat. Any of their works which you think should be studied, do so. We shall follow them, but shall not blindly worship them in all aspects(3).
These dying words of H.M. King Phra Nang Klao in 1851 seem to have become cliché since international relations between Thailand and western countries have developed into just the future that the King predicted. Thai lawyers have a difficult time answering the question whether western influences have already defeated the uniqueness of the Thai legal system. It seems like defeat to accept the demise of the traditional Thai legal system, yet it is obviously dodging the question to deny the impact of western legal systems.
The dawn of the 21st century is one of the most significant turning points in the modern history, perhaps the greatest event since the end of World War II. The world has changed rapidly and vigorously. These changes have exceeded expectations, especially in terms of international relations, economics, and technology. Thailand has changed just as drastically as the rest of the world over this period.
From the beginning of the industrial revolution in Europe until the mid-19th century, cultural, economic and technological developments from the west have been adopted by eastern countries, including Thailand. These developments opened Thailand to the west, especially in the realm of commerce. An early part of the process of Thailand’s opening to the west was the drafting of the Bowring Treaty with Britain in 1855, and subsequently other western countries. In order to protect independence, Thailand had to renounce many of her sovereign powers, such as the power to extraterritoriality of the judicial system, the right to monopolize international commerce, and the right to fix tariffs on imports and exports.
The 21st century is also the time of great change in Thailand because of the vast improvements in political structures under tremendous economic pressure. Thailand’s survival has depended both on the harmony of its citizens and cooperation at an international level. Looking back 100 years ago, there is a tremendous similarity between the fate of the Thai people then and modern Thai citizens. In the late 19th century, Thailand had almost been occupied by the west under the guise of colonialism. At that time, one of the most important defenses employed by the Thai government to prevent colonial powers from taking root in Thailand was to reform its governmental structure and to modernize the legal system. Today, the government is following the same path, starting with the promulgation of the new constitution in 1997, and more recently a major reform of the government service system in 2002.
Thailand is currently at a great transitional point in her history. Has the legal reformation of the last two centuries been appropriate? Unavoidably, this question must be thoroughly pondered to plan the future course of Thai legal policy. Now is the time that Thailand must decide whether legal and administrative policies should follow western models wholeheartedly as did previous reforms, or whether there are certain traditional concepts to the Thai legal system which must be preserved.
Analysis of Thai legal history during the last two centuries could be used to navigate a path for the planning and development of Thai legal policy in the future, since current legal and political systems are the result of administrative policies and legal reformations undertaken in the 19th and 20th centuries. Knowledge of origins and results of the reformation would also help to protect the sovereignty of Thailand and the freedom of the Thai people from undue influence of foreign powers. Additionally, foreign powers would be presented with an alternative legal policy founded in the characteristics of traditional Thai legal and administrative policies.
Understanding about each other is the best way to harmonize the world because now there seems to have no hegemonic legal system anymore. There is a western scholar’s note that: “it is based on an impression of “hegemony”. Acknowledging that individual characteristics of each legal family can be found in any of the others and thus, in purist’s term, all legal systems are mixed.”(4)