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O, Ryuji: How Judges Used the Dhammathats
customs and usages of the people for whom they were intended. But subsequent
weak rulers, or a change in dynasties, reduced the body of law promulgated by
predecessors or members of the subverted dynasties to a dead letter; it was set
aside and then forgotten.” [Forchhammer ibid., p.]
us the king of Myanmar could revise or newly compile the Dhammathats to suit
changing times and conditions and preserve or abolish the laws promulgated by his
predecessors. e Myanmar kings, however, were respectful to the Dhammathats, and
ordered the judges to decide cases in accordance with them [ROBIII, p. (th August
), etc.] and always encouraged the judges to study them [See ROB III &
(, August, ; AMA Apaing (hka) , pp.–, etc.], because, the Dhammathats
were permanent law, while promulgations of former kings were impermanent.
. e present author’s view
Undoubtedly the Myanmar Dhammathat was traditionally not a positive law, but a
leading guide for society. We, therefore, may say that the Dhammathats were strictly ‘a
principle’ in guidance, while the prevailing customary rule were substantially ‘a reality’
in practice. e th–th century Europeans sometimes seemed to have misinterpreted
the ideas and characteristics of the existing Dhammathats or at least the Dhammathat
seem to have been unheard of to the Europeans at that time.
As we have seen above, the Myanmar Dhammathat might have been perceived as
an obsolete and inefficient legal reference to alien eyes. e idea that the Dhammathats
hardly played a significant role in the judicial administration in the kingdoms
of Myanmar probably stemmed from the Europeans’ misinterpretation of Myanmar
traditional law as a whole. In other words, the Myanmar Dhammathat should be interpreted
within the framework of a loosely structured legal system and the concept of
the eravada Buddhist kingship. e loosely structured legal system was sufficiently
flexible to allow prevailing customary rules to come to the fore, under the influence
of Buddhist doctrine of transience. e Buddhist king played the role of arbitrator
in disputes, according to the rules of the Dhammathats, fitting them to changing times
and conditions. It appears that the Dhammathats hardly ever played an important
role in individual law. It might, therefore, hold true in the thirteenth century of Bagan
when the Dhammathat seemed not to be popular, as pointed out by Frasch, a German
scholar that the Dhammathats had more symbolic than practical importance [See Frasch
, p.]. But it is also evident that the Dhammathats were very oen referred to
by judges at the judicial courts in the Konbaung period as we will see in the Yezajyo
Hkondaw Hpyathton.
Unfortunately, only a few judicial decisions during the Myanmar kingdoms are
extant today. ese are: firstly the decisions for civil law suits by Shin Kyaw u (Shin
Kyaw u Hpyathton), the chief judge at Hanthawaddy Bago (=Pegu) during the time of
King Bayinnaung (Shinbyu-mya Shin) [–] in the sixteenth century; Secondly,