"When lawyers, law professors or government officials in Myanmar today are asked what kind of legal system Myanmar has, the resounding response is that it is a ‘common law’ system.1 This advice is received as music to the ears of donors and investors from common law countries, who presume that the ‘common law’ has the same meaning everywhere and that this will facilitate future legal transplants of common law models. Although Myanmar has a legal system derived from a British colonial model, it has developed significantly since then. There remain some similarities with its common law heritage, such as that judges and lawyers follow judicial precedent where it exists, but in many areas of law it is virtually nonexistent (see Tun Zaw Mra, this volume; Tun, this volume). To really understand what kind of legal system Myanmar has and how it operates today, it is necessary to look beyond the ‘common law’ label. There is a need to carefully reconsider the wider history of its legal institutions, the patterns of law making and the role of law makers. In this chapter, I respond to this challenge by surveying the layered legal history of Myanmar. This is not to suggest that Myanmar is somehow less than a common law legal system but, rather, to emphasise the diversity of legal institutions and legal practice within the common law world and recognise that Myanmar has not always been a part of it. My approach stresses multiple, and at times conflicting, layers of development in order to refute the perception that law reform has occurred alongside what has been perceived by some outsiders as the ‘big bang’ of political reforms since 2011. This allows us to consider the complexity inherent in the legal institutions within an ostensibly ‘common law’ system, and the ruptures, road bumps and sharp bends that obstruct the road to reform. Like many other colonies, Burma experienced the devastating effects of British imperialism. Its experience of British colonialism was the shortest in Southeast Asia,2 and this meant that the colonial legal system did not evolve over a long period of time but was largely imported from British India. The legal system also developed in ways distinct from other former British colonies because at independence it was one of only two former colonies to reject the British Commonwealth, and this severed ties with the courts and legal profession in England. The fact cited most often to emphasise Myanmar’s distinct context is, however, that its military has dominated the political sphere for decades (Egreteau and Jagan 2013: 9), which means that the armed forces have exerted significant influence over the legal system since 1962. Keeping this in mind, I seek to explore how judicial and legal institutions relate to political developments, as many other Asian legal studies scholars such as Lev have done (Lev 2000: 161). Specifically I examine the origins of the law in Myanmar, the key influences on the development of the modern system and the direction it has taken. While each successive regime issued reassurances about the continuity of laws, the reality is that, following independence, laws were often superimposed on a fragile constitutional order and used to justify violence, exploitation and military rule. This does not mean that law was irrelevant or meaningless but rather that we need to take a closer look in order to understand what law means in authoritarian settings (Ginsburg and Simpser 2014; Ginsburg and Moustafa 2008) and the ways in which remnants of these legal nightmares overshadow the present reform efforts. The Origins of Burmese Law The area that we know today as Myanmar was ruled by a series of different kingdoms. The first to be established by the Burmans was known as the Kingdom of Bagan. While there were interregnums between some kingdoms, the period of the kings clearly ended with the downfall of the Konbaung dynasty in 1885. Prior to this, a distinct legal culture had developed over time in Burma (Huxley 2008: 184). The primary sources relevant to our understanding of pre-colonial legal culture in the area date to the twelfth century and contain inscriptions with records of judicial disputes.3 These sources indicate that a body of written law known in Burmese as dhammathat was used in the adjudication of cases.4 Lammerts has classified the dhammathat into two types: ‘manual texts’, or compilations of bodies of knowledge; and, ‘narrative texts’ that contain a full legal story from beginning to end (Lammerts 2010: 208–28). It was the second style of narrative texts that characterised the dhammathat and distinguished it from other types of written law in pre-modern Burma (Lammerts 2010: 366). The dhammathat have been described as a ‘manual of instruction’ for judges, whose legal authority was derived from their ‘moral and educational’ credentials (Lammerts 2010: 434, 492). They do not easily equate to a common law understanding of law reports, legislation, codifications of law or religious texts (Huxley 1988–89: 24). In addition, records and texts from the fifteenth and sixteenth centuries demonstrate that court cases and other literature also made reference to other recognised sources of law. These include pyat-hton, which were essentially compilations of judge-made precedent; yazathat, that is, law made by the king (Lammerts 2010: 3); canonical and non-canonical Jātaka and related Buddhist narratives; and vinaya, monastic law, which in pre-modern Burma was, in certain instances, applied also to the laity (see generally Lammerts 2010).5 The dhammathats are generally structured around 18 major titles of law. These 18 titles comprise criminal, personal and economic matters; dhammathats also contain extensive rules on legal procedure, kingship and monastic law (see generally Lammerts 2010). The history of their reception is complex6 but until the eighteenth century dhammathat was generally regarded as a form of law that originated in Buddhist tradition and was preserved and passed down unaltered by legists and kings. After the eighteenth century Burmese legal scholars increasingly argued that dhammathat should also be understood as a product of human law making to foster social prosperity so that merit making could be undertaken. Up until the colonial era dhammathat was regarded as authoritative Buddhist literature, on a par with, and, according to some authors, even included in, the Buddhist canon (Lammerts 2013). The kings, some of whom are now memorialised in imposing statutes at the capital city of Naypyidaw, sought to conquer local kingdoms and propagate Buddhism. They included the first main king, Anawratha (1044–77); King Bayinnaung (1551–81), who achieved unrivalled expansion of power; and King Alaungpaya (1752–60), who was the first to sign an agreement with a foreign power, England (Steinberg 1982: 18–24). The king was the head of the Hluttaw, the Supreme Council of State. The Hluttaw fulfilled numerous roles, including as a legislative chamber, a ministerial cabinet, and a court that had civil and criminal jurisdiction, and could hear appeals from lower courts (Kyaw Yin 1968: 62). Some kings have been noted for the significant legal reforms they undertook, such as King Mindon (1853–78), who initiated changes to the court system of administration and improved social infrastructure (Thant Myint U 2004: 109–29). King Mindon also introduced regulations to combat corruption, and facilitate greater specialisation by the courts, dividing them into civil and criminal jurisdictions (Yi Yi 1962: 11–19). As this legal tradition developed, a unique legal profession emerged, 7 which was already established in at least the twelfth century (E Maung 1951: 15). Law advocates were known by the term she-ne, which aptly captures the role of lawyers as advocating on behalf of their clients because it literally means ‘those who stand in front’ (Huxley 1994: 219). This rich legal tradition and its profession of ‘tradition bearers’ came to an abrupt end in the 1880s (Huxley 2008: 199). The onset of colonialism led to the intentional decimation of a highly literate and professional legal culture (Huxley 1998). The social, political and legal customs and traditions established and developed during the period of the kings was profoundly disrupted and displaced by the Anglo-Burmese Wars (1824–26, 1852–53 and 1885), which were the result of both internal factors and external developments in the region. In the early 1800s, tensions rose between British and French colonial powers in Southeast Asia, and their rivalry and battle for ‘supremacy’ in the region led to the Anglo-Burmese Wars (Furnivall 1948: 70). The British embarked on what became known as the First Anglo-Burmese War in order to cement the boundaries of British India. This led to the signing of the Treaty of Yandabo, ceding parts of southern and western Burma to the British, and the annexation of the Rakhine and Tenasserim regions. Mr Maingy, the first Commissioner of Tenasserim, set about establishing a judicial system but proceeded on the misguided assumption that all decisions of the Burmese courts were merely ‘arbitrary’ (Furnivall 1991: 22). The British were not content with the Yandabo concessions, and after launching the Second Anglo-Burmese War of 1852, Rangoon and other parts of Lower Burma were ceded to them. British authorities then began to take steps to flesh out a legal system that they intended would consolidate territorial rule. In 1866 the Chief Commissioner was given power to enforce the laws of India in Burma but did not have power to promulgate laws (Donnison 1953: 29). It was not until 1872, however, that the first Judicial Commissioner of Burma, Douglas Sandford, was appointed and took over judicial powers from the Chief Commissioner (Furnivall 1960: 12). In the same year, court decisions began to be reported for the first time, with the publication of the Selective Lower Judgements of Lower Burma. The ultimate demise of the monarchy and its system of law in Burma occurred as a result of the Third Anglo-Burmese War in 1885. King Thibaw, the last king of the Konbaung dynasty (1752–1885), and his family were captured by the British and shipped off to India. One effect of this final stage of the annexation of Burma to British India was to subsume it under the foreign common law tradition..."