Law and Identity

The Case of the "Common Law" of Scotland with Comparative Insights from Thailand

Abstract

This article will first focus on the “mechanics” of the “mixed legal system” in Scotland, the product of the nineteenth century and rooted in nineteenth-century conceptions of “legal science.” On the other side of the globe, the Thai legal system arose from historical contingency by which the nation sought both international recognition and self-consolidation after the colonial era. Against this backdrop, Thai legal scaffolding has been formed and imprisoned by its legal historiography as an intellectual imagination; in particular, the grand narrative creates local adherence to great legal tradition and rationalisation of Thai traditional values. Thai and Scots law may have had a completely different path of historical contingency, but what the two systems share is an exaggeration of grand narratives that obscure the nature of each legal system. To view these systems of law from a post-positivistic approach, a different approach is needed. After an initial discussion about Scots law, the influence of the civilian tradition upon Thai law will be investigated, followed by a summary of the main conclusions.