Let’s begin by stating the obvious. We Burmese do not come off as being amongst the most legalistic of cultures in today’s world. Indeed, disputes in Myanmar are notoriously ever, if at all, brought to the courts by the average Burman. More often than not, cases are settled outside official institutions in rather informal settings. But in some instances—when the conditions are right—it’s common practice for people to just even drop charges right then and there simply out of nothing more than good conscience. Community-based dispute resolution culture is another long and intricate topic in and of itself, indeed. A key detail, though, is that this is nothing new actually. These practices have existed for as long as Burmese civilisation has been around on this Earth. Another aspect that might be overlooked in relation to this is that these practices have often existed in parallel with written law for centuries. Burmese history shows that there was actually a time when indigenous “law” existed in Myanmar that, in fact, continues to be used today. 

When the British East India Company arrived in Burma following the First Anglo-Burmese War in 1826, what they stumbled upon was not a lawless society void of law and order, as some may believe it to have been, but rather a society that had its own laws, lawyers, and courts prior. We know from well-kept records and first-hand accounts that there existed an established court hierarchy in pre-colonial Burma locally produced in its entirety. It boasted its own supreme court, a number of lower-level appellate courts, and lower-level provincial or district courts—all of which would have featured appointed judges. Their courtrooms would have produced witnesses whenever necessary and practised their own traditions, like requiring lawyers to wear conical hats and robes, for instance. Thus, there existed advocates, pleaders, barristers, or shénés, too, who would, on occasion, “stand before” judges in these courts to represent those involved in disputes. Most importantly, however, the dhammathats—what one might consider today Burmese “law”—was another institution which existed alongside these others. Like all things in Myanmar, its origins can be traced all the way back to the Mon peoples. 

The Mon, a minority ethnic group now—close relatives of today’s Cambodians—were a peoples that had established kingdoms in the region of modern-day Myanmar approximately south of the twentieth parallel up until the eighteenth century. Their civilisation contained very strong Hindu elements and, therefore, was very familiar with the Hindu Code of Manu and, thereby, Hindu law. By the fifth century, a Mon-Buddhist version of Manu had come into being, but one which had done away with the code’s original Hindu influences. We now refer to this code as the Mon Manu Dhammathat. As opposed to religious law, they contained customs of the day, only keeping Manu’s forms—a practice that succeeding dhammathats would continue. The term dhammathat itself was derived from the Sanskrit word dharmashastra, meaning “treatise on law.” When the Burmese came into contact with the Mon, after having left their homeland in the South-Eastern slopes of the Tibetan highlands around the 9th to 11th centuries to travel down the Irrawaddy, they came to adopt a large part of Mon culture, and, by consequence, their legal culture, amongst many other things. But over the centuries, the Burmese, inspired, would develop their own legal tradition and dhammathats thereafter. By the end of the British conquest in 1885, they, in fact, had drawn up 36 of their own. 

It’s important to note that a typical dhammathat was not legislation. It would not have been law in any sense of the word as we might understand it today. The dhammathats did not demand complete and strict adherence to the provisions they contained. They were actually, first and foremost, pedagogical and exhortative texts. The dhammathats, in fact, explicitly state that they were compiled for the betterment of judges who were to bear in mind their stipulations if and when they should perform their juridical activities. Therefore, they served as manuals of instruction whether they were acting in a professional or institutional capacity. By one measure, the dhammathats might be considered legal literature actually—and not, arguably, legal code. After all, they were nothing more than collections of customs in the end. However, simply because dhammathats may not have been explicitly cited or applied in some disputes certainly did not mean that they had no effect on actual legal practice. This is important. They did—and especially so at higher-level courts where judges would have had stronger claims to specific legal expertise. 

While the pre-colonial legal tradition revolved around these “manuals of legal instruction,” the onset of colonial rule would significantly change Burma’s legal framework. Most substantive law used today is, indeed, inherited from Great Britain and, by extension, India, but they continue to coexist with the remnants and echoes of this unique and complex indigenously crafted legal tradition. Cases that regard inheritance, family, marriage, and religion continue to be under the jurisdiction of the dhammathats as instructed by the Burma Laws Act of 1898, whereas those outside of these three areas of the law go under the ultimate jurisdiction of colonial and post-colonial era legislation. Since independence, however, a debate has existed and continued over whether Myanmar should look into embedding elements of its pre-colonial legal tradition into its contemporary legal system or fully adhere to contemporary-style legal practices. Most important, however, is the question of the status of community-based dispute resolution mechanisms still prevalent throughout modern-day Myanmar in today’s society. The law in Myanmar, as we see it today, therefore, is a work in progress, one which is still—as are many other things in the country—in the stormy throes of coming to terms with its pre-colonial, colonial, and post-colonial legacies.

By Shine Lin Zay Yar
Virginia Tech

Bibliography

Burmese names are alphabetized by their first syllable: Aung San would appear under Aung rather than San.

Huxley, Andrew. “The Importance of the Dhammathats in Burmese Law and Culture.” Journal of Burma Studies, vol. 1, 1997, pp. 1-17.

Maung Maung. Law and Custom in Burma and the Burmese Family. Netherlands, Martinus Nijhoff Publishers, 1963.

Maung Htin Aung. Burmese Law Tales: The Legal Element in Burmese Folklore. United Kingdom, Oxford University Press, 1962.

Okudaira, Ryuji. “How Judges Used Dhammathats (law books) in Their Courts in 18th-19th Century Myanmar (Burma) with Special Reference to Yezajyo Hkondaw Hpyathton.” Journal of Asian and African Studies, vol. 66, 2003, pp. 319-329.

Shway Yoe [Scott, James George]. The Burman: His Life and Notions, Norton & Company, Inc., 1882.