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Thai Law Is Not the Common Law

Transcript of the above video:

To preface this video, I want to state again I am an American Attorney. I am a naturalized Thai citizen but I am an American Attorney, the Managing Director of this firm. I have had the Thai Attorneys have a look at this video before putting it out. Really, actually this is one of the more innocuous ones; I am just talking about Thai Law in just a general sense. In fact, this is kind of a comparative law video if you will. 

We did a recent video on filming people in Thailand without consent where I cited some legal provisions here in Thailand that could have a bearing on a possible Court analysis with respect to folks that film people without consent here in Thailand. I got some comments and I noticed that there was a theme in the comments. There were two of them specifically where there was this theme that I decided to make this video on. I am not talking about their opinions on that video at all, it is just this discussion of Thai Law versus common law. Quoting directly: "I hope the case law in Thailand has fleshed out what the actual application of that vaguery should be." (by vaguery I think they meant vagueness but it is vague and then they put an r, y at the end I think they meant vagueness). Yes, Statutory Law can be vague. It was written broadly. It is not particularly written for "John Smith is walking down the street. If he trips over a curb that is a tort or something."  That is not how it works. They try to write it to be both broad as well as not over broad which is an issue in law where something is almost drafted to just pull in everybody, even those who are innocent of any violation. Again to go back with this, "I hope the case law in Thailand has fleshed out what the actual application of that vaguery (I think they meant vagueness) should be." 

Then another comment on that same video, said "In my country it is clearly defined from precedent and it is your right to do it." So again, not getting into the back and forth, that is not my purpose in making this video but we have two notions here, case law and precedent. Those are common law notions. “Stare decisis” or let the decision stand as it means in Latin in the legal context, “stare decisis” and precedent, those are fundamental core concepts of  the Common Law and that may be the United States, the UK, the Commonwealth countries so called Westminster Law utilizes precedent also known as case law. That is decisions from court cases made over time. I remember Contracts Law, Hadley versus Baxondale, this hundreds of year old case and how it pertains to remote consequential damages in US Contract Law. Even though it has been over for hundreds of years, through the doctrine of “stare decisis”, precedent or case law, that case still has bearing over modern cases in a common law system. Precedent doesn't work that way in Thailand. In fact precedent doesn't work at all in Thailand. Prior cases, especially at the Supreme Court level may colour and nuance analysis of cases in the future but it is not binding in the same way that “stare decisis” can be. Now in American jurisprudence, especially at the Supreme Court level, “stare decisis” can be overcome but the Lower Courts, very uncommon. Now again, the Thai Courts tend to take into account especially prior Supreme Court decisions, maybe, but if they are fundamentally distinguished not so much. It is not this overwhelming concept, this very ubiquitous concept that we have in the western, specifically the common law tradition, that prior case law is going to be determinative. No, it is frankly not and really in minor cases where it is not some major point of Law that needs to be sussed out, no, it tends to be resolved case by case and there is no case recordation in the same way that they are shepherdizing etc. in the US for example where you have these records of these this precedent that has been set, it does not work the same way here in Thailand.

As we have noted in other videos on this channel, Thailand does not utilize precedent that way. Again, it may have bearing in an indirect sense insofar as a future Court may read that opinion to gain some insight but you cannot view it as shaping or molding Thai Law as time rolls on. It is not how it works and you should just be aware of that. Foreigners that are here, it was difficult for me, it took me years to fully understand what it means to not utilize precedent the way that we do in the Common Law. It took a long time. Now arguably, I was more indoctrinated to it but I notice lay folks just make these presumptions and these are presumptions that are not a good idea to make because you are making presumptions on things that basically just don't operate that way here in Thailand.