TORT, CUSTOM, AND KARMA: GLOBALIZATION AND LEGAL CONSCIOUSNESS IN THAILAND

by David M. Engel and Jaruwan S. Engel. Stanford, CA: Stanford University Press, 2010. 208pp. Cloth $60.00. ISBN: 9780804763813. Paper $21.95. ISBN: 9780804763820. E-book. $21.95. ISBN: 9780804773751.

Reviewed by D. S. Zang, Assistant Professor, University of Washington School of Law, Email: zangd [at] uw.edu.

pp.55-59

This beautifully written book was co-authored by two distinguished experts on law and society in Thailand: Professor David M. Engel, Distinguished Service Professor at SUNY Law School, and his wife, Jaruwan S. Engel, freelance writer and translator who is now retired from SUNY’s Thai Language Program. The book is based on ethnographic studies conducted in Chiangmai in northern Thailand, and continues David Engel’s decades of contributions to the area of cultural studies of tort law.

The Engels have spent a considerable amount of time in Thailand: Mrs. Engel was born and raised in central Thailand, and Professor Engel had been conducting research in Thailand since the 1970s. In 1990, they were able to return to northern Thailand and resume their research that led to the book. That means they have witnessed a lot of changes in Thailand brought by globalization in the past decades. What we know from the outside is often the most dramatic. The early 1990s saw a booming Thai economy, so much confidence was built that Bangkok aspired to be the financial center in Asia. During the 1997 financial crises, Thailand was hit the hardest when baht, the Thai currency, experienced a collapse. There is no lack of political drama either. From time to time, protests, demonstrations, and a coup d’├ętat in Thailand hit headlines in the West. Yet drama is not what the Engels are looking for. Their interest, rather, is the everyday experience of the ordinary people. Through the book, they are seeking answers to the question: “What happens to law in the lives of ordinary people when a society undergoes rapid change, economic development, and integration into global markets?” (p.3)

Conventional wisdom, which the Engels call “liberal legalism,” would like us to believe that globalization inevitably results in spillover and ultimate global embracement of the “rule of law.” The book is a rejection of that claim. “[A] transformation in the legal consciousness of individual citizens has indeed occurred,” the Engels argue, “but it has led neither to a heightened commitment to rule of law ideology nor to a rejection of the norms and values of a market economy.” (p.6) “Instead,” according to the Engels, “law in all its forms appears to have diminished in importance.” (p.6) Looking through the lens of tort law, a field of law that deals with liability and compensation in personal injury cases, “the transformation of the landscape of injuries has left Thai people bereft of any form of law and without any workable remedy when they suffer harm at the hands of another person” (p.7). [*56]

Argumentation of the book is unfolded on three layers. First, the core of the study is in-depth interviews of thirty-five patients who were injured in accidents and treated at Suan Dock Hospital in Chiangmai. The Engels find that ordinary people often follow customary rules and religion in their conceptualization of injury, while state law is largely irrelevant. Second, consistent with the ethnographic findings, people go to the court less often now. Litigation statistics in Chiangmai Provincial Court suggests that litigation rates have decreased significantly between 1965 and 1997. Why this is happening? On the third layer, the Engels offer a sociological explanation. They find that spatial and temporal changes brought by migration have uprooted ordinary people from customary rules as well as their community. To the extent that modern tort law in Thailand is predominately state-centered, it is detached from and thus loses connection with customary rules. As a result, ordinary people find law increasingly irrelevant to their notion of justice.

One great joy of reading the book is its ethnographic narratives. The book starts with a story of Buajan, a young mother (Chapter 1) and ends with stories of a young man, Ming (Chapter 7). A mother of two children, Buajan was injured when a car driven by an old man ran over her leg near a roadside pork stand. Whose fault was it? For modern tort law – adopted in Title V of the Thai Civil and Commercial Code – this is essential for establishing liability. But Buajan does not perceive her case this way. She attributes the accident to multiple causes, and none of them constitutes a legal claim. She believes that the old man, referred to as “Uncle,” was negligent; in the meantime, she admits that she has contributed to the accident as well (p.25). More surprisingly, perhaps, Buajan believes that a ghost in the mongo tree may have been the reason of the accident (p.26); or maybe the whole thing was fate (khro), or her bad karma (p.27). The supernatural, whether ghost, spirit, or karma, is a theme that Buajan turns to constantly. In these religious interpretations, an accident is understood as a punishment, calling for reflection that points to the self, rather than blaming others; it demands affirmation of the common rules in the community, rather than maximizing individual liberty.

Ming is an electric power line repairman in his early 20s. Compared with Buajan, Ming has more exposure to the globalized world (p.150). Self-identified as “new generation,” (p.140) Ming wears no religious amulets on gold chains around his neck; he participates in none of the traditional rituals; nor does he have a household shrine. Ming has his leg injured while playing a soccer game with his friends. Ming proclaims that he does not believe that spirits were a cause of his injury, nor does he believe in karma (p.146). Nevertheless, Ming’s “emancipation” from the tradition is incomplete (p.149). In an earlier injury, he was shocked by electricity while working on a pole. When he realized that the “cause” of the accident was that he had insulted a spirit from a nearby shrine, he was forced to visit the shrine and ask for forgiveness.

In this conceptualization of accidents, the question “what causes the accident” does not set off a logical move leading to a decision on liability – the ultimate goal of tort law. In fact, neither Buajan nor [*57] Ming is interested in pursuing liability “rigorously.” The Engels note that ordinary people have a low trust in law. “Buajan regards law and legal institutions with fear.” (p.31) Like Buajan, Ming believes that law is “more for the rich people, lawsuits and that sort of thing.” (p.151) Ming doesn’t see any connection between law, courts, lawyers, and justice. “If you have money, if you have enough money, then you have rights.” (p.152)

Statistics from the Chiangmai Provincial Court are consistent with the ethnographic data. The Engels find that, from the 1965 to 1997, personal injury litigation rates in Chiangmai have declined significantly (p.100). In this period, the number of registered vehicles increased 79.2%, while the number of tort cases of the same period only increased by 2.3% (p.106). All this happened despite the fact that the number of attorneys has gone up five-fold (p.116).

Thus far, the Engels have presented a convincing and interesting case to question liberal legalism. What is the social mechanism that has produced the low “legal consciousness”? The answer lies in globalization itself. Here, the Engels analyze five mutually connected elements of culture and consciousness: (1) spatial and temporal frameworks; (2) concept of the self; (3) community, social networks and relationships; (4) justice norms; and (5) cosmology and religious self. In the traditional Thai society, the concept of self was defined by customary rules regulated by community centers (“sacred centers”) in cosmological terms. Injury was thus understood as not merely a threat to the bodily integrity but also to the community fabric. It demanded action of the community as a whole. When the sacred center was not able to provide a solution, the parties involved would initiate the legal process. In such a situation, state law provided an official forum to sort out difficulty. But as soon as a compromise according to customary rules is obtained, the lawsuit is withdrawn. Thus state law was not a replacement but an aid to the customary rules: “State law reinforced customary law by serving as a forum of last resort in the quest for a traditional remedy; customary law legitimated state law by incorporating it into a view of the world that was familiar to ordinary people.” (p.76) However, this connection is “shattered” (p.79) as a consequence of the 1980s and 1990s socioeconomic transformation in Chiangmai. Now more injuries occur far from home, traditional mediators and respected elders saw their authority eroded, and community networks weakened or collapsed. As a result, having been deprived of its social bases, state law now becomes empty: “Formal legal institutions are almost never seen as instruments to attain justice.” (p.131)

Drawing from the ethnographic narratives, litigation statistics and sociological analysis of legal consciousness, the Engels conclude that “. . . the expansion of liberal legalism in the thoughts and deeds of ordinary people is not necessarily a part of the globalization process,” (p.160).

The book is a powerful voice in area studies. It admirably engages in the globalization debate from the perspective of the ordinary people’s everyday experience. James C. Scott [*58] recently complained that the history of Southeast Asia is, still, dominated by the state-centric approach, disproportionately based on and shaped by official records (2009: 33-34). With this background, the book is an extremely valuable contribution to the history from below.

The Engels always probe narratives with great subtlety that is often reminiscent of Clifford Geertz. Narratives are not just stories – they are not just about what have happened; they are a meaning-making process. They are “a way of reestablishing order and reaffirming moral values that they believed no longer prevail in contemporary society.” (p.19) This is close to what William James remarked in THE VARIETIES OF RELIGIOUS EXPERIENCE: “Religious feeling is thus absolute addition to the Subject’s range of life. It gives him a new sphere of power. When the outward battle is lost, and the outer world disowns him, it redeems and vivifies an interior world . . .” (1902: 52). Thus, religion in these narratives is not merely a refuge. Rather, it is a statement against globalization and liberal legalism; it is an utterance of an alternative – it is cultural resistance: “In their minds, law was tainted not only by the sometimes suspect character of its institutions and officials but more fundamentally by its emphasis on short-term, tit-for-tat vindication rather than the Buddhist virtues of forgiveness, generosity, compassion, selflessness, and nonattachment.” (p.154)

Insights developed in the book are not limited to area studies. Before this book, Professor Engel had long been conducting research on law and society in the rural community of “Sander County” Illinois (1984). A general theme in Professor Engel’s studies in the United States and Thailand is clearly visible: Not only does the long-time residents in Sander County emphasis on self-sufficiency and individual responsibility resemble the religious interpretations in Thailand, but also official law differs from the ordinary people’s perceptions, that law is often irrelevant to their everyday experience. In their study of people with disability in the United States, Engel and Frank W. Munger (1996) applied narrative methods and reached similar conclusion. (Most recently, Engel and Michael McCann co-edited a book titled FAULT LINES (2009a) which is a collection of essays covering a wide range of countries and historical periods. Tort law as cultural practice is clearly grounding these studies (Engel and McCann 2009b).

Cultural study of tort law or injury is a timely project. In an era of the BP oil-spill in the Gulf of Mexico, the healthcare reform debate, climate policy impasse, and the lingering Hurricane Katrina litigation, personal injury is as political as it is personal. How do the ordinary people experience these challenges? How do they perceive the self in relation to community, and to the political state? Cultural studies will be a great value in providing a phenomenological reflection. Again, one reason for its strength is its perspective, as the Engels have, rightly, insisted in their book. Lawrence M. Friedman and Thomas Russell, in a study of tort litigation in 19th century Alameda County, California, pointed out that there was indeed a sharp division between two conceptions of tort law. One was the visible, tangible lawyer’s [*59] law of torts – the law taught in books; “[t]he other was the law as it was lived and felt – the law among the bleeding, mangled, wounded victims of industrialism; the men, women and children who experienced ‘tort’ not as an abstraction or a concept, but as reality: as broken bones, pain, suffering, lost arms and legs, bereavement, despair” (1990: 310). The book TORT, CUSTOM AND KARMA is a welcome addition to the literature in the second camp, and a lasting contribution.

REFERENCES:
Engel, David M. 1984. “The Oven-Bird’s Song: Insiders, Outsiders, and Personal Injuries in an American Community.” 18 LAW & SOCIETY REVIEW 551.

Engel, David M. 2009. “Injury, Causation, and Responsibility: A Cross-Cultural Analysis of Tort Law in Society,” in David M. Engel and Michael McCann, FAULT LINES. pp.251-68.

Engel, David M. & Michael McCann (eds). 2009a. FAULT LINES: TORT LAW AND CULTURAL PRACTICE. Stanford, CA: Stanford University Press.

Engel, David M. & Michael McCann. 2009b. “Introduction: Tort Law as Cultural Practice,” in David M. Engel and Michael McCann, FAULT LINES. pp.1-17.

Engel, David M. & Frank W. Munger. 1996. “Rights, Remembrance, and the Reconciliation of Difference.” 30 LAW & SOCIETY REVIEW 7-53.

Friedman, Lawrence M. and Thomas D. Russell. 1990. “More Civil Wrongs: Personal Injury Litigation, 1901-1910.” 34 AMERICAN JOURNAL OF LEGAL HISTORY 295.

James, William. 1902. THE VARIETIES OF RELIGIOUS EXPERIENCE: A STUDY OF HUMAN NATURE. New York, NY: Barnes & Noble 2004 (1902).

Scott, James C. 2009. THE ART OF NOT BEING GOVERNED: AN ANARCHIST HISTORY OF UPLAND SOUTHEAST ASIA. New Haven, CT: Yale University Press.


© Copyright 2011 by the author, D. S. Zang.