Codification in Thailand during the 19th and 20th centuries: A study of the causes, process and consequences of drafting the Penal Code of 1908.

摘要

This dissertation challenges the idea that the Thai Penal Code of 1908, as well as its successor, is defective due to the intervention of Western legal principles, which diverged from the needs of Thai people and were imposed, during the period of codification. I argue that almost all of the legal principles in the Penal Code of 1908 have in fact been carried into the current Criminal Code and are in legal practice today, with minimal amendments because they are still functional. Therefore, I ask: what are the major reasons that allow almost all of the legal principles prescribed in the original Penal Code to be sustained until today?;Based on a qualitative research in law and history, I analyze the causes, process, and consequences of the drafting of the 1908 Penal Code. I find that the major reasons that make those legal principles still practical are: (1) the quality of pre-Western Thai law and Western law, which were chosen and prescribed into the Code; (2) the comprehensive considerations in the drafting of the Penal Code, which did not rely solely on the extraterritorial regimes, but were the product of other internal motivations; (3) the competence of both Thai and foreign drafters, who were experienced in drafting codified law, on blending the pre-Western and Western laws together; (4) the codification execution of the drafters with attention to the needs of Thai society, comparing reasonable pre-Western law as well as rulings with Western law and drafting provisions similar to pre-Western law; and (5) the roles of judges and legal scholars in interpreting and proposing alternative ways to apply the Code.