Transcript of the above video:

Every now and again I come across a piece of subject matter that when you get into a deep dive of it you actually end up finding yourself confronting pretty fundamental Doctrines of Law, sort of notions of law, philosophies on law that you wouldn't at first think that would be where you would end up when you sort of start the journey if you will of doing the research on a given topic. This kind of happened to me with the issue of vaping. Recently a friend brought an article to my attention regarding vaping specifically and we made a video on it. Basically, it is not as cut and dried as originally thought regarding the illegality of vaping in Thailand most notably that while maybe possession while in Thailand or if you buy a vaping product in Thailand, albeit illegally but you possessing it, that may not be a criminal offense but again the Customs Act in Thailand continues to make importation of such devices illegal. We have done another video on that topic contemporaneously with this one, not really going into that.

What we are talking about here is while getting into this, I bumped up against what we have discussed and we primarily discussed it in the context of a bunch of the "mandates" that we dealt with back in 2021 where we went through the Public Health, I believe it's the Public Health Act or the Communicable Diseases Act, actually I think is the title of that Act off the top of my head and we were discussing how there was for example no "mask mandate" specifically codified in any legislation. As a result I had serious questions about whether or not any sort of mask mandate was legal because quite honestly it wasn't. Not to mention the fact that now based on the data and the evidence, it was also ineffective and that is pretty much unquestioned now by peer-reviewed documentation that I have read. 

Leaving that aside, the issue of Codification is not a small one and although we are discussing this in the context of vaping, I think it is an important point to kind of draw out so that people understand. Again I come from a Common Law tradition. I have a JD, at the end of the day that's a doctorate. I have done Comparative Law and then as I went along in the past 15 years out here in Thailand primarily starting with US Immigration work, I got into dealing with stuff under the US-Thai Treaty of Amity and then as time went on, I became Thai and I have worked with Thai Attorneys over the years. I am Managing Director of the firm here. I have gotten to kind of have a bit of an outsider's perspective if you will on a Civil Law jurisdiction such as Thailand. But this Doctrine of Codification keeps coming back up, I keep bumping into it and it is worth noting. I thought of making this video after reading a recent article from coconuts.co, that's coconuts.co, the article is titled: No, vaping and vapes are not illegal in Thailand. Here's why. Again the thrust of that article is about vaping and sort of the nuances surrounding the laws on vaping and illegality and this Attorney that we are going to get into that is cited in this article notes that vaping itself in the country is not illegal although importation might be. But what we are getting to in this video is something deeper. This is like philosophy of Law kind of stuff here, this is comparative law and I want to quote this. So quote: "To prosecute someone on the criminal law, there has to be a clear law," he said. And "he" is attorney Sukhprem Sachdecha, a partner at Bangkok Legal firm, WSR International. So Coconuts here is interviewing this person, this Attorney, Khun Sukhprem and again I want to quote this again: "To prosecute someone under Criminal Law there has to be a clear law, he said. There is nothing in the law which says that having or being in possession of such goods is in violation of the law." Yeah, that is codification at its core. Again this is kind of where the legal philosophies, there is sort of a fork in the road between the Common Law notions of law and the Civil Law notions of law. Again, very basic stuff here and I want to be clear on this. This is kind of for educational purposes only. Don't go out and be doing a bunch of things that are going to get you sort of apprehended by the police so that you can then have a detailed philosophical discussion on the differences of law, that's never a good idea. This is more so that in my opinion I'm hoping this will be somewhat useful for foreigners, foreign nationals who come to Thailand, especially foreign nationals coming from Common Law jurisdictions, to better understand the philosophy of legal thinking that prevails in Thailand and this Doctrine of Codification is right there.

Common Law jurisdictions they have an element of the Civil Law insofar as they oftentimes will promulgate statutes for example in the United States, we have a US House and the US Senate and we have 50 State Houses and Senates or a unicameral legislature like I believe Nebraska has in that one specific instance. But those legislatures promulgate statutory law. That's very similar to Civil Law insofar as you have codes; a legislature of Parliament will promulgate code and promulgate laws, possibly regulatory codes springs therefrom, you deal with it but in the Common Law as well there's a tradition of using legal opinion through the doctor of what's called "stare decisis" in Latin or "Let the decision stand" in English which basically is the notion of precedent, what we call precedent in the Common Law and precedent is the reason why certain holdings in Hadley vs Baxendale if you go back hundreds of years, or Black Stone’s legal opinions still hold weight today and have heavy weight that they hold today oftentimes because of the notion that we want to kind of keep an ongoing uniformity to the law; we want people to have some certainty when they operate in the world from a legal standpoint. 

Now Thailand again, and most Civil Law jurisdictions do not adopt this kind of framework, in the same way I should say. It is my understanding in Europe they sometimes do this with commentary but Thailand is a different animal. The Civil Law system here from my observation does not seem to operate that way. Instead of having these sort of legal opinions again like a Supreme Court decision just sort of hovering around in the legal mist if you will, the sort of legal ether, instead, Civil Law says look unless something is explicitly illegal, you have codified and said this behaviour, this activity, this product is illegal; no one can own it, no one can do it, no one can whatever, under these circumstances and they are set forth in the law under the Doctrine of Codification the presumption is then it is not illegal essentially. It's only illegal if codified as such. That is how I have always understood codification. I remember going down to Louisiana years ago, a few different times Mardi Gras a couple of times and things, and I always found it fascinating Louisiana operated with a very different paradigm; it just operated kind of differently and anybody that has ever been there and folks that sort of know the legal tradition of America, know that Louisiana is an anomaly of the 50 states insofar as it is a Civil Law Jurisdiction. Again not one I have any great insight into but just anecdotally I can say it kind of runs a little differently down there and again I think a lot of this stems from this Doctrine of Codification. 

So to sort of wrap up and the thing to take away from this video is this is important stuff. As noted in this article, it has day-to-day practical ramifications that, look unless you make a law that explicitly illegalizes something, you can pretty well presume that you can go ahead and do it without any kind of legal repercussions.