In northern Thailand, legal and social change creates dilemmas for forest conservation. On
the one hand, Thailand suffers from severe deforestation and biodiversity degradation mainly
as a result of human activities that overuse and encroach on forest areas. On the other hand,
forestry law has, in turn, intruded on traditional communities that lived in and relied on the
forest before modern state law diminished their lands and community rights. One of the
potential solutions to this dilemma is community forest management (CFM), which
acknowledges the forest stewardship of the communities who rely on the forest and helps
them to become better forest protectors.
CFM refers to people’s participation in forest conservation in the form of collective
community action. The right to practise CFM is guaranteed in the Thai Constitution as a
community right. However, state forestry law provides direct authority to government
agencies and dominates forest management without reference to the Constitution.
My hypothesis is that the Thai legal system is not compatible with CFM because the legal
culture is based on written law and not on living law, which comes from the legal consciousness of the villagers and government officers who practise CFM.
I use interviews as a research method to investigate the legal consciousness of three groups
of people involved in implementation of CFM: members of three selected northern lowland and
hill tribe communities/villages; government officers; and legal professionals. I apply green legal
theory to analyze the two types of law governing CFM: state law and the law of the commons.
People in the selected forest communities apply their own CFM regulations and use state
forestry law for support only when their regulations cannot handle extreme situations. The
villagers’ own CFM – the law of the commons – together with state law, creates their “living
law”. Government officers cooperate with CFM, knowing that it will help them fulfill their mission of forest conservation. In contrast, legal professionals rely only on state forestry law
rather than the Constitution, despite its supremacy, and ignore the law of the commons.
To explain this phenomenon, I “decode” Thai legal culture by investigating its historical and
social contexts. I also examine the legal education system, law making processes, legal
commentaries and court decisions, to understand what shapes Thai legal culture. In my view,
the narrow focus on statute law in Thai legal culture, and the focus on law as a profession rather
than as a justice-based discipline, can be explained by the “modernization” of Thai
administration and laws, and by the encroachment of globalization and capitalism, both of
which have resulted in moving away from traditional land management based on the
commons.
I conclude by suggesting that the acceptance of CFM in Thai legal culture can be improved by
encouraging socio-legal study, increasing understanding of CFM, implementing constitutional
legal principles – and by reclaiming the law of the commons.