AND LEGAL REASONING*
is common for lawyers to restrict the concept of legal reasoning to
the process of argumentation as a process of justification of legal
judgements. (2)Such definitions normally exclude the
question of the morality of those judgements and miss the deeper layers
of legal reasoning. Legal reasoning can hardly be separated from moral
reasoning.(3) This unity of moral and legal reasoning
comes from the nature of legal reasoning defined as the process of arriving
at legal decisions through the evaluation of facts and adaptation of
legal rules and principles to those facts. It is clear that moral reasoning
is an integral part of any legal decisions, because any legal reasoning
is based on the moral standards of what constitutes the duties of a
proper evaluation of fact and proper application of legal rules. Morality
is about rightness and goodness. Since the task of legal reasoning is
to make a right and a good legal decision, the whole process of such
reasoning is inherently moral.
are several aspects of importance in moral standards for legal reasoning.
In this relation, almost every topic in Thai folktales has a direct
or indirect relation to legal reasoning. In this article, the Thai folktales
chosen address the problems of legal formalism and mistakes in evaluation
of facts and adaptation of rules to those facts. Legal formalism is
a process of arriving at a decision only on the basis of consideration
of formal characteristics without serious attention to substance of
the problem at hand. The first folk tale "Rolling Stone - Marrying
Woman" presents legal formalism very clearly. The second folk tale
"Stupid Men" is full of examples of the wrong handling of
general rules in particular situations.
STONE - MARRYING WOMAN(4)
The story is about three cities - kingdoms. Two kingdoms had a prince
heir each. The third kingdom had only a princess named Saroisaddaa,
but no prince. Both princes wanted to marry the princess who loved one
of them whose name was Praasaaththong. Another prince whose name was
Jitgasaem had a stronger army. The father of the princess was afraid
of the war with the kingdom of Jitgasaem, if he were to give his daughter
to Praasaaththong. he was advised by his advisors to arrange a competition
between the two princes. The committee of arbitrators was appointed
consisting of representatives from all the cities, and they were to
ensure that the rules were observed. The one who won would have the
right to marry the princess. The princes had to roll huge stones, each
from different directions, to the centre of the city of the princess.
The first who arrivedshould strike the gong as a sign of victory, and
the princess should be given to him. Praasaaththong arrived first to
the great joy of the princess. The whole city started to celebrate the
victory by eating and drinking. But the winner forgot to strike the
gong. When Jitgasaem arrived, a member of the committee from his city
advised him to strike the gong without delay. To the great distress
of the celebrating crowd it was clear that according to the rules Jitgasaem
won. After awhile, Jitgasaem returned to the city of the princess with
a huge army, and the father of the city had had no choice but to give
his daughter to the official winner. The princess grieved and refused
to lie together with Jitgasaem. Jitgasaem decided to send her to a mountain
which was later called Khaolormnaang, translated as 'the mountain of
fondling a woman'. There were many flowers, and many people were sent
to persuade her to yield to Jitgasaem. The princess continued to grieve,
neither accepting Jitgasaem nor eating any food. In the end Jitgasaem
came to the mountain himself riding an elephant. At that time an angel
of sexual love pierced the heart of the princess. Inflamed with passion
she climbed the elephant and gave herself to her husband. After that
they had a happy family life until they died.
The story told by a man indicates a superiority of a persistent and
strong man over the attachments of a woman. If told by a woman the story
would likely have a different outcome of the contest between the two
princes. There are several moral principles which can be deduced from
the narrative. The first principle is watchfulness. Praasaaththong and
his party were celebrating victory too early. Having accomplished the
substantive part of the competition, they forgot the formal part which
was vital. On the other hand, the other party was watchful and noticed
the mistake of the first party. The counsel for Jitgasaem did not panic,
but used every opportunity to gain victory even under the circumstances
of apparent defeat.
The related moral principle is that of perseverance. In the face of
defeat, Jitgasaem did not give up, nor did he give up when he was rejected
by his wife. He knew the opposition to his marriage and brought the
whole army with him, being prepared to fight for his right. It is interesting
that the second competitor did not make any further efforts to question
the victory of Jitgasaem. This readiness to fight for one's right is
undoubtedly a positive element of the folktale.
storyteller approves the treatment of the princess by Jitgasaem. One,
however, can make some reservations on the moral content of this story.
. If one has to take the perspective of the princess, it is a sad story.
She was not free to give her love to the one whom she genuinely loved.
The ultimate reason she was given to Jitgasaem, was to avoid war with
the aggressive prince who wanted to marry at ail costs. The public interests
of the kingdom of the princess required the sacrifice of her freedom.
Stability and peace of the public are superior to the personal choice
of the individual. This is indeed the truth for many societies and laws
except perhaps, the modern Western law based on the superiority of human
rights. Taking into account the importance of peace, it is possible
to excuse the father of the princess for yielding to the demands of
Jitgasaem. But is there any moral justification for Jitgasaem who denied
to the princess any right to choose? His desire was to possess the woman
at any cost, although it is true that he did not do her any physical
violence. The story provides a final justification for the acts of Jitgasaem:
they lived together happily until their death. In other words, the story
provides a consequentialist justification: a good end justifies any
Published in Thai Folktales and Law, ACTSCO. Ltd, Chang Mai, Thailand.
** The author is a law lecturer at School of Law, Faculty
of Social Sciences, Chiang Mai University, Chiang Mai 50200 Thailand.
author is a law lecturer at School of Law, Faculty of Social Sciences,
Chiang Mai University, Chiang Mai 50200 Thailand. He completed his PhD
law research both in Moscow (Russia) and in Glasgow (the UK). For comments
he can be contacted at: email@example.com
N. Legal Reasoning and Legal Theory. -Oxford: Clarendon Press, 1994.
- P. 19.
(3)See: Fuller L. The Morality of Law. - Yale University
in: Nithaanphynbaan. - Ed. by Wichan Getpratum - Bangkok: Samnakphimpattanaasygsaa,
2000. - P. 63.