Analyzing the Legitimacy and Appropriateness of Thailand’s General Royal Pardon Through the Case of Somkid Pumpuang in the Jurisprudential Perspectives of Savigny and Bentham

Abstract

The history of the law on pardons in Thailand is long-standing, from ancient times to the present. It is primarily governed by the Constitution of the Kingdom of Thailand, B.E. 2560 (2017), specifically in Sections 179 and 175, and the Criminal Procedure Code in Section 261 bis. These serve as the main framework outlining the authority, criteria, and qualifications for pardons, detailed further in subordinate laws enacted through royal decrees. The objective of the pardon law is to provide offenders with the opportunity to reintegrate into society through a justice process administered by the Department of Corrections, the Cabinet, and the Ministry of Justice as the executive bodies responsible for such considerations. However, while this law is procedurally correct, from the perspective of legal philosophy, there are considerations regarding its legitimacy and appropriateness. Analyzing through the legal philosophy of Georg Friedrich Carl von Savigny of the Historical School, it is emphasized that the legitimacy of law must relate to the national spirit developed from the nation’s internal history. In contrast, Jeremy Bentham, the founder of modern utilitarianism, focuses on content and outcomes rather than formal aspects. He posits that a good law is one that maximizes happiness for the greatest number of people in society. Bentham uses the principle of utility to measure the value of actions and laws, believing that laws stem from the will of powerful individuals and can be amended, altered, or repealed to ensure the greatest benefit and minimize future suffering for the majority in society. This paper aims to evaluate whether the current practice of granting pardons in Thailand, particularly in the case of Somkid Pumpuang, aligns with the legal philosophies of Savigny and Bentham regarding legitimacy and appropriateness.