Globalization and the Decline of Legal Consciousness: Torts, Ghosts, and Karma in Thailand*
David M. Engel [FNa1]
This study analyzes the transformation of legal consciousness associated with the process of globalization. It examines changing conceptions of injury and compensation in northern Thailand, where global economic and cultural flows have had a dramatic impact over the past twenty years. In their "injury narratives," ordinary Thai people describe the harm they have suffered, the causes they identify, the issues of responsibility with which they struggle, the obligations and remedy systems they consider relevant, and the role of law as they perceive it. These accounts, as well as litigation records from the Chiangmai Provincial Court, suggest that a transformation of Thai legal consciousness has indeed occurred, but not in the direction one might have expected. Rather than embracing liberal legalism or conceptualizing their grievances in terms of rights, injury victims in post-globalization Thailand are now less inclined to perceive their experiences in legal terms and more inclined to rely on a new form of religious discourse in which Buddhist precepts justify the injured person's decision to refrain from the pursuit of compensation. This article offers an explanation of why globalization appears to have pushed legal consciousness in the direction of religiosity rather than rights.
There was something that warned me the night before the accident. It was a screech owl. It called out and then it flew back and forth. It meant something. I went to an Indian fortune teller before the accident. She said, "Daaw, [FN1] you are a person who has premonitions. You have premonitions easily." And on the day of the accident, I had a pair of pants that got caught on a piece of metal. It was a long tear, all the way to here. So I was already uneasy. She said to be careful; you will get in a traffic accident. But at that point, I didn't believe her. I only half believed her, or maybe I shouldn't have believed her at all. Some people said she was good and others didn't. I thought if I drive my motorcycle and I'm not negligent, if I drive here and there and am careful all the time-but I still had the accident [three days later]. I went to see her the next time, and she said, "Well, I warned you and you didn't listen to me."
I'm frightened. I don't want to have any more pain. I've already suffered enough pain.
-- Interview with Daaw (noodle shop assistant)
Despite the warning signs, despite her premonitions of danger, Daaw was struck by a careless driver at an intersection, and she suffered serious injuries. She tries to explain why this happened to her. Was it her own fault-- her failure to heed the fortune-teller's advice and the warning of the screech owl? Knowing she was at risk, should she have driven her motorcycle even more carefully? Perhaps she was fated to suffer harm because of her stars or because of karma she had created earlier in this life or in a previous life. But sometimes she thinks it was simply because the other driver was in too great a hurry and was not careful enough. What should she do about the injury--the pain she has experienced and the costs she has incurred? She could perform rituals to strengthen her karma or apologize to guardian spirits she might have offended, but she also has bills to pay. Who should take responsibility for these costs? Daaw is concerned that the parties on the other side are resistant to paying compensation, that they are trying to use their wealth and status to put her in the wrong. Perhaps Daaw has rights that have been violated. Is there a role for law in her story? For Daaw and others, the law seems distant and threatening. Moreover, the law is in many ways irrelevant to her understanding of what has happened, why it has happened, and what needs to be done about it.
This article analyzes "injury narratives"--extended reflections on traumatic events placed in the broader context of individual life histories-- which were provided by people who had been hospitalized for treatment in Chiangmai, Thailand. Coming from a variety of rural and urban settings, all the interview participants live in an environment marked by profound social, economic, and political transformations. Such changes are central to this study, since they reveal how a combination of forces often referred to as globalization interact with the identities of ordinary people and the worldviews in which law may or may not play a part. This is, then, a study of law and globalization, but it differs from much of the sociolegal scholarship that has come to typify the genre. It expresses skepticism about claims often made in the name of globalization, a term that is not always distinguishable from processes of social change that have long been studied under other headings: urbanization, modernization, and "development."
The literature on law and globalization usually tells a story of transformation initiated from the west or north (e.g., Berger and Huntington 2002, 2-3; Hall 1997, 2-8; but see Ong 1999, 241; Inda and Rosaldo 2002, 15-25; Vervoorn 2002, 299-300). It traces the diffusion of norms and institutional practices from America and Europe as they flow east and south through new technologies and through new political and economic structures, leading to transformations at the national or transnational level. The relevant actors in such studies are typically members of the social elite, often Western or Western-educated and steeped in the liberal legal tradition. Although this type of research may examine instances of localized resistance to global power, and may point to the emergence of new sociolegal spaces and fields within the global order, its primary interest is in the movement of ideas and actors from the "center" outward and from the "top" downward. From this perspective, analysts often highlight the pervasiveness of American and European influences but less often provide insight into the thoughts and experiences of ordinary people "at ground level." By contrast, this study associates itself with research that asks a different question about law and globalization: How have the "time-space compression" (Harvey 1990, 240; Sassen 2001, 260-63) and the "global cultural flows" (Appadurai 1996) affected the legal consciousness and everyday practices of ordinary people and the role law plays in their social interactions? [FN2]
When the question is posed this way, the answers may be surprising and counterintuitive. Although it is said that globalization "accentuates individualism, and increases resort to law for the affirmation of individual rights" (Perez-Perdomo and Friedman 2003:5), the findings in this study suggest a trend away from liberal legalism among ordinary people in Thailand and a diminished regard for and use of law and legal institutions. Instead of an increase in the role of law, the Thai injury narratives suggest a new and important role of religion--in this case, of Buddhism. The emergence of a heightened form of religious consciousness rather than liberal legalism in everyday life may have implications for the study of globalization in other societies and in other regions of the world that have experienced a religious resurgence.
It might seem odd to focus on personal injuries in order to address these questions. Usually the scholars of law and globalization choose to study international trade, the environment, human rights, the legal profession, or even constitutional or administrative law. Torts and tort law have not been the site of much scholarly activity among students of globalization. [FN3] The typical Thai case of injury caused by careless driving or a sporting mishap may seem remote from and irrelevant to the world of multinational corporations, NGOs, and international lawyers. Yet it is precisely this remoteness that makes the injury narratives of ordinary people such a valuable subject for inquiry. Here we can see with remarkable clarity how new information flows, new economic arrangements and activities, new patterns of internal migration, and new ideologies and religious belief systems create new human identities and new perceptions about the self and the community, and about social practices and responsibilities. In these stories, with their immediacy, intimacy, pain, and beauty, we can understand quite clearly how law and justice recede from the grasp of ordinary people even as they seek a vocabulary to express their sense of loss.
2 GLOBALIZATION IN CHIANGMAI
I conducted the fieldwork for this article in Chiangmai, Thailand from 1998 to 2004. Twenty-five years previously, in 1975, I had studied hundreds of civil and criminal cases litigated in the Chiangmai Provincial Court over a ten-year period and also a number of cases that had been mediated outside of court by village leaders or other status superiors (Engel 1978). Returning to Chiangmai a quarter of a century later, I sought to understand the extent to which northern Thai society had changed in the wake of dramatic social and cultural transformations affecting Thailand and all of Southeast Asia. Specifically, I hoped to determine how such changes might have affected perceptions and practices related to personal injuries.
Chiangmai is in many ways an ideal setting in which to study the effects of changes usually considered indicators of globalization. Its capital, known as Chiangmai City (or simply, "Chiangmai"--the name of the province and its capital city are used interchangeably), is the "new city"[FN4] founded in the latethirteenth century by the legendary leader, King Mengrai. Chiangmai was one of the first and most important of the distinctively Tai [FN5] principalities toemerge in the mountainous northern region of what is now Thailand, as Mongol Chinese power receded (Wyatt 1984, 43-50). Chiangmai and the northern Lanna region flourished (Lanna means literally "a million rice fields"), but by the later part of the fourteenth century, competing political centers began to emerge farther to the south. Over the ensuing years, first Ayutthaya and then Bangkok became the primary locus of Thai power and influence. Chiangmai was a prize coveted by the competing powers of Burma to the west and Ayutthaya and Bangkok to the south, and its history reflects the alternations of Thai and Burmese cultural, political, and military hegemony over an extended period.
In the late nineteenth and early twentieth centuries, responding to the threat of the English and French colonial powers on Thailand's borders, the Thai monarchy hastened to transform the nation's legal and political system and to incorporate outlying regions such as Chiangmai within clearly defined national boundaries (Engel 1975, 1978; Winichakul 1994). Consenquently, Chiangmai's indigenous potpourri of religions, peoples, practices, and laws were absorbed into an administrative structure centered in Bangkok and founded to a large degree on Anglo-European principles of law and government (Bunnag 1977). Today, Chiangmai is the second largest city in Thailand and one of the most important provincial centers outside Bangkok.
[FNa1]. David M. Engel is SUNY Distinguished Service Professor, School of Law, University at Buffalo. Funding for this study was provided by the National Science Foundation, grant no. SBR98-10372, and by the Baldy Center for Law and Social Policy. Thanks to Jaruwan Engel for her collaboration and participation throughout the study. I would like to acknowledge the many contributions of colleagues, students, and other friends at Chiang Mai University. For their advice and help with facilitating the fieldwork, special thanks go to Dr. Kobkun Rayanakorn, Dr. Nidhi Aeusrivongse, Dr. Panarairat Srichaiyarat, and Dr. Kanya Hirunwattanapong. I am grateful for suggestions and encouragement from many other colleagues, including Howard Erlanger, Rebecca French, Bruce Jackson, Robert Kidder, Takanori Kitamura, Alfred Konefsky, Lynn Mather, Frank Munger, and other UB colleagues who participated in the Baldy Center Program on Community and Difference and the UB Law School Faculty Workshop. I received excellent support from a number of able and dedicated research assistants, including Sutthira Foocom, Usa Gopal, Wipha Iamsamang, Rotjarek Intachote, Sarah Kim, Suda Rangkupan, Viliporn Runkawatt, Warit Silavisesrith, and Duen Wongsa.
[FN1]. All Thai names are pseudonyms.
[FN2]. Examples of such research include Coutin 2000 and Munger 2002. Legal consciousness in this article refers to the practices and concepts invoked by ordinary people who have suffered injuries and who, in the course of their subsequent narrations, discuss questions of remedy, fate, causation, and justice. Legal consciousness, as I use the term here, has important implications for the role and legitimacy of formal legal institutions and actors, even when they are not explicitly invoked. As Ewick and Silbey explain, consciousness is "part of a reciprocal process in which the meanings given by individuals to their world, and law and legal institutions as part of that world, become repeated, patterned and stabilized, and those institutionalized structures become part of the meaning systems employed by individuals. We understand consciousness to be formed within and changed by social action" (1992, 741).
[FN3]. There have been a few important exceptions. See, for example, discussions of tort law issues stemming from the Bhopal disaster in Galanter (1985, 1986) and Cassells (1996).Transnational tort litigation has captured a good deal of scholarly attention (e.g., Bloom 2001; Stephens 2002; and Shamir 2004), but the purpose of this article is to focus the analysis solely on the relationship between globalization and the use of local remedial systems in Thailand, not the transnational litigation of tort claims.
[FN4]. The name Chiangmai literally translates as "new city."
[FN5]. Tai refers to the ethnolinguistic group currently scattered throughout southern China and northern Southeast Asia. Thai refers to citizens of the modern state of Thailand, who are predominantly but not exclusively Tai. See generally Keyes 1977 and Wyatt 1984, 1-2.