Tort, Custom, and Karma: Globalization and Legal Consciousness in Thailand

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Overview


Diverse societies are now connected by globalization, but how do ordinary people feel about law as they cope day-to-day with a transformed world? Tort, Custom, and Karma examines how rapid societal changes, economic development, and integration into global markets have affected ordinary people's perceptions of law, with a special focus on the narratives of men and women who have suffered serious injuries in the province of Chiangmai, Thailand.

This work embraces neither the conventional view that increasing global connections spread the spirit of liberal legalism, nor its antithesis that backlash to interconnection leads to ideologies such as religious fundamentalism. Instead, it looks specifically at how a person's changing ideas of community, legal justice, and religious belief in turn transform the role of law particularly as a viable form of redress for injury. This revealing look at fundamental shifts in the interconnections between globalization, state law, and customary practices uncovers a pattern of increasing remoteness from law that deserves immediate attention.

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Editorial Reviews

From the Publisher

"David Engel and Jaruwan Engel make an important contribution to the field of sociolegal studies in this outstanding, concise volume that traces the retreat of law in the face of rapid social change in Chiang Mai . . . The book's insights into the relationship between community-based and state-based resolution of disputes are particularly valuable . . . [T]he Engel's scholarship will enlighten students of law and society across disciplines and belongs in every sociolegal collection . . . Essential."—J. D. Marshall, CHOICE

"This beautifully written book was co-authored by two distinguished experts on law and society in Thailand . . . The book is a powerful voice in area studies. It admirbly engages in the globalization debate from the perspective of the ordinary people's everyday experience . . . Tort, Custom, and Karma is a welcome addition to the literature."—Law and Politics Book Review

"This is a brilliant and artful account of the dwindling of law in contemporary Thai life. It presents a formidable challenge to the widespread expectation that globalization will be accompanied by enlarged reliance on increasingly similar law." —Marc Galanter, London School of Economics and Political Science

"The Engels explore the effects of globalization on the legal consciousness and concepts of justice of northern Thais through interview with injured persons in Chiangmai during the 1960s and 1970s and then in the 1990s . . . They use this framework to evaluate how globalization and modernization have affected conceptions of injury, causation, remedies, and justice and provide suggestions as to how this research may be extended to broaden our sociolegal understanding."Shad Kidd, Religious Studies Review

"This beautifully clear book reveals how globalization has torn the webs of locally based legal and religious dispute resolution systems without putting anything in their place. The result, for many accident victims, is a reemphasis on religious ways of making sense of and responding to accidents, rather than a focus on the law and compensation. This empathetic presentation of another worldview is truly exemplary."—David Nelken, Cardiff University, UK and Macerata University, Italy

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Product Details

  • ISBN-13: 9780804763820
  • Publisher: Stanford University Press
  • Publication date: 3/8/2010
  • Series: The Cultural Lives of Law Series
  • Pages: 208
  • Product dimensions: 5.50 (w) x 8.40 (h) x 0.80 (d)

Meet the Author


David M. Engel is SUNY Distinguished Service Professor at the Law School of the University at Buffalo. His most recent book is Fault Lines: Tort Law and Cultural Practice (Stanford, 2009). Jaruwan S. Engel is an author, Thai language instructor, and translator, and was formerly Lecturer and Coordinator of the Thai Language Program at the University at Buffalo.
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Read an Excerpt

Tort, Custom, and Karma

Globalization and Legal Consciousness in Thailand
By David M. Engel Jaruwan S. Engel

Stanford University Press

Copyright © 2010 Board of Trustees of the Leland Stanford Junior University
All right reserved.

ISBN: 978-0-8047-6382-0


Chapter One

Buajan's Injury Narrative

A BIRD CHITTERS IN THE TREE at the end of the lane. It is late afternoon, and mosquitoes begin to venture out of the shrubs. Buajan's yard abuts a tall fence with a locked gate. Just beyond the gate we can see the wooded area of a park, formerly the graveyard of a now non-existent temple. Spirits from the graveyard may be listening and could be offended by the things we say, but Buajan must speak honestly with us about her beliefs and experiences: "I wouldn't dare to lie about these things. I'm afraid. I fear sacred things the most."

Buajan was born in a farming village in the neighboring province of Lamphun. She attended primary school in her village and completed the fifth grade before moving to the city of Chiangmai. There she continued her studies through the tenth grade, and there she remained to work as a sales clerk, a cleaner, a launderer, and a cook. She married a native of Chiangmai who is a handyman at a university, and they have two children. Thirty-nine years old at the time of our interview in 1999 and employed on the kitchen staff at a hotel, Buajan struggles to survive Thailand's economic crisis. She earns only 3,000 baht per month, which was about $75 at the time of our interview. Buajan describes a recent past filled with setbacks and crises. Of these, the most vivid is the accident that broke her leg and almost took her life.

The Accident

I had just taken my children to school. I drove past Wat Lampoeng, where there's a roadside stand that sells pork. I decided to stop and buy some pork. After I paid for it ... I was just waiting.... This old man, this "Uncle", had ... parked his car right there, and he began to back up, back, back, back. When he got to the end of the path, he didn't go straight ahead. Instead, he lurched toward me. There was a small child [in a stroller] in his way, and the car was backing into the child, and I went to save him ... Just then the father pulled the boy away by his arm, but I couldn't get out of the way in time. It was a really big car. I was right here. The car ran into the stroller and went on to smash into a longan tree just behind me and then it bounced off it again. He ran into me. One of my legs was bent and the other was sticking out like this. The car ran right over me and came to a stop, and then it ran over me again.

The roof of the pork stand was collapsing. It was made of corrugated zinc. It would have crushed my neck, but luckily I was wearing a crash helmet so I could push it away. I was conscious. I was able to push it off, but I was really shocked. It was a good thing there was no blood at all, even though my leg was so badly hurt. You can imagine what it was like before the surgery. The driver was shocked, too. If he had seen blood, the guy who hit me, he probably would have died. After they brought me to the hospital, he had to be admitted himself at another hospital. He was an old man, you know? I felt sorry for him....

He said he had no feeling, it was as if someone [Buajan is referring to a ghost] was pushing his car. That's what he told me. At the corner of that shop, there had been fatal accidents. Three or four children had been killed.... The pork shop is near a mango tree, which is where I was standing. And near the mango tree, a lot of people had died [indicating the presence of a ghost].

After he hit me he just sat in his car in a state of shock. The villagers took me to the hospital.... They put on a splint for support, because the bones were broken, both of them.... Later the old man came to see me one time. He came and said something like, "You don't have to report this, right? I'll take care of things. I'll pay all your expenses." ... Then he just disappeared. His son came to visit me when I had my surgery. He came, but he didn't say much. He just visited and brought me a gift. He came to see me while I was hurting, and then he disappeared.

Buajan's conversation constantly turns to religious interpretations of everyday experiences and to her own daily efforts to give expression to her beliefs. She articulates her spirituality in several different vocabularies. At times she speaks explicitly of Buddhist-related practices, commenting, for example, that she prays to a Buddha image every day. Buajan's conversation is also dominated by references to spirits and ghosts. It is no exaggeration to say that her everyday perceptions and actions revolve around the spirit world. Whenever she visits her family's home in Lamphun, Buajan propitiates the household spirits and the village guardian spirits. These ceremonies are obligatory on special occasions, such as her wedding, the birth of her children, and when members of her family become ill.

Like many interviewees, she says her beliefs in the supernatural are "fifty-fifty." She still believes in traditional practices related to the spirits of northern Thailand, such as healing rituals-although she acknowledges that there have been important new technological developments, especially in medicine, that can benefit her family. Like her parents' generation, Buajan believes that the ghosts around us may attempt to communicate with us. We cannot see them, but they see us. Contact with ghosts can cause people, especially children, to become startled or ill. When this happens, their khwan, or spiritual essence, may be injured or fly out of the body, causing a fever for which the cause cannot be determined (the khwan and its rituals are discussed in Chapter 3). In such cases, it is necessary to make a promise, lighting incense and telling the ghost that if it is the cause of the child's illness the parents will offer it chicken or sweets when it allows the child to recover.

Injuries, therefore, may originate in efforts by ghosts to communicate with humans, and one appropriate response is to perform rituals to propitiate the khwan. The most dangerous contacts involve ghosts of persons who died abnormal or violent deaths. Such ghosts are known as phi tai hong. Initially, Buajan is reluctant even to discuss them. But then she, like other interviewees, describes the sut thon ceremony performed at the site of a fatal accident to lead the winyan, or soul, of the deceased person away from that place where it might otherwise become a dangerous and malevolent ghost. Buajan describes the purpose of the ritual offerings that are presented at the accident site:

The winyan fell there. It must be invited to leave, to float away so it won't stay there. If it stays, it will attempt to contact other people, and soon other winyan will fall there as well. They perform this ceremony; I've seen them do it. They still do it today.

During the sut thon ceremony, black, white, and red flags are planted at the spot of the accident along with food and incense to symbolize the progression of the winyan from darkness and confused disorder into light and spiritual release:

The black flag represents the winyan of the person who died. The white flag leads him away toward the light. Black means darkness. He cannot go anywhere, especially the person who dies an unnatural death (tai hong). He can't enter the house of his relatives. He can't go anywhere. It's dark on all eight sides [an idiom meaning one is completely lost and enclosed in darkness]. This is represented by the color black. Then monks and relatives come and make merit there. After their prayers, the white flag leads him to follow the red flag upwards, so he can be released and float up and escape from the darkness. So he can encounter the light, so he can emerge and be reborn.

The sut thon ceremony is still widely performed, and travelers can observe flags beside the road where fatal accidents have taken place. Humans, as Buajan and many others still believe, must attempt to ward off the malevolent ghosts that can cause illness or injury, but human efforts are never enough. People who go out of their houses may encounter ghosts at any time, through no fault of their own. This may have been one of the causes of the accident that injured Buajan herself, but there are also other causes and other explanations.

Causation: Sexual Impropriety They said that my injury, the accident when the car hit me, it was because a child, a girl related to me, she went and violated our customs. She acted improperly, and it caused my harm. Probably a girl, if she went with a boy, that violated the customs of the northern region. She shouldn't have done that. By chance, an ancestor [Buajan refers to a spirit] may have been visiting us then, although we weren't aware of it because we couldn't see him, right? He punished us because the adults, the father and mother, they should have warned the girl not to do this. The spirit medium said it was a relative, I don't know who, who did wrong, and it fell on me. By chance, my stars were weak at that time.... The spirit may have come to visit just then and saw this.

Causation: Negligence of "Uncle" I believe he was negligent. He drove a car even though he had really lost the ability to drive well. He was seventy-four, and they shouldn't let him drive anymore.... His eyesight was bad, and he had gout, too. So we blame him. He was in poor health. That's how we look at it. He has a disability; everyone knows he suffers from gout.... He didn't take proper precautions. He knew the car was out of control, so why didn't he brake? Instead, he steered the car in my direction.... He accepted all the blame.... I was just standing there. There's no reason why he should have hit me, when you think about it.... He said he wasn't well. That's just an easy excuse. He had no feeling in his leg. If this case had actually gone to court, he would have been in big trouble.

Causation: Negligence of Buajan Herself We have to take precautions. Both sides have to take precautions, both the one who hits us and the one who gets hit. We need to watch out, too. I think that I was also negligent. I wasn't looking ahead and behind. I didn't turn to my left and my right. I heard the sound of a car coming, "Brrrmmm, brrrmmm!" and I thought it was going down the highway. I never thought it would turn into the area where they were selling things.... When I say that I was negligent, I mean that I didn't watch out. If I had been a little more careful, if I had been out of the way just a little bit more, then I probably wouldn't have been this badly hurt.

Causation: The Ghost in the Mango Tree Truthfully, I don't like to think about it, but it [the ghost] did play a part.... There was another vendor, right? And she placed some food as an offering there for the person to eat, the person who had died. And the owner of the pork stand came and pissed all over it. He said, "Hey, let's add a little fish sauce [salty food flavoring]." Yes, it was that guy. This is what they told me later. [After he desecrated the offering to the ghost] the owner of the pork stand had been sick a lot.... His motorcycle had overturned four or five times, but his stars were still strong, when you think about it. Nothing happened to him. But one young kid, a hill tribe person, his motorcycle hit the tree and he lost a patch of his hair, it stuck right onto the tree. And after my accident, in less than a month, a lot of other people had accidents there, too. But now they're making a new road, and it looks like they're going to cut that tree down and throw it away. That should remove the winyan. Just before he ran into me, there was still hair and blood stuck to the tree. I mean that tree, where the kid had run into it, it was still fresh. That accident just happened a few days before. I didn't know about this until the old man told me. He said, "Oh, that ghost was what did it. He must have wanted to eat the lap [minced pork]. When the other woman who sold pork presented the offering, the 'Uncle' at the pork stand went and pissed on it. That's why the ghost never ate it. It must have been a starving ghost." ... He blamed the ghost. That was his excuse. He tried to get out of it by saying the ghost did it. Actually, I half believe it, too. Most likely, it really did want something to eat. But I don't live in that village, so there's no way I could have known. If I'd known, I probably would have made something to give it [as an offering].

Causation: Khro (Fate) If we want to consider this in depth, the cause would be the khro that we created before that time, and then it came back and caught up with us. We don't know when. We don't know what previous existence it was when we did this. It comes back to us in this existence, at this time. Often we don't know, right? We may have struck a dog or a chicken and broken its leg. Or sometimes we didn't do it, our husband or our children were the ones who did it, but it falls directly on us just because our stars are not especially good at that time. The accident happened just before my birthday. I was born in April. For a woman, if her age is an odd number, we know it's not very good. She will have khro. For men, it's even numbers, and it's especially bad when his age ends in zero. Just by chance, in my case, it was my thirty-ninth birthday when I was injured....

Causation: Karma Our karma, we don't know when we created it. Maybe we stepped on an ant or something like that, and we consider that karma. We may kill a cockroach without intending it. We may close the bathroom door, and a house lizard that was there might get caught in the door and die. We consider this to be karma that we didn't intend to create. Once I struck a chicken. It had come up into the house. At that time we were raising chickens. It left its droppings in the house and made a mess. I struck it. And a dog, too. I broke the dog's leg. It was stubborn; I tried to get it to leave the house, but it wouldn't leave. It liked to climb up and lie down near us in the house, on the bed. So I got a stick and hit the dog to drive it out. I think about all of these factors combined. They did play a part.

Comparing the Causes I think the primary cause was the place, the tree, and also "Uncle." It was Uncle, because he had khro. If he had been the one standing there where I was, he probably would have been badly injured. But as it happened, he was protected in the car, which was steel wrapped all around him. That's why he wasn't hurt. But he, in his spirit, he was injured and sick.

Buajan ascribes her accident to numerous causes: a young girl's sexual impropriety that offended an ancestral spirit, the driver's negligence, her own negligence, a hungry ghost near the mango tree, the fact that her age was an odd number of years, and her own karma arising from bad deeds in a previous life or from harm she had inflicted during this life on a dog and chicken. Each causal explanation suggests a different framework for understanding the nature of the injury and how it should be remedied. Assigning responsibility for harm implies an assumption about what should be done next and who should do it. Buajan's narrative mentions several different kinds of remedies, each connected to a different system of social order and normative enforcement: the community of locality-based spirits, the realm of the supernatural, Buddhist beliefs and practices, and governmental institutions.

Remedies: The Khwan Ceremony My mother bound my wrists [with sacred thread, a ritual to secure the khwan-soul in the body]. "Uncle" also had a spiritual teacher who went to perform the sut thon ceremony, because he was afraid that my khwan fell at that spot. He went to retrieve my khwan and then bound my wrists with sacred thread.... He went to the spot where the accident occurred and scooped up the khwan. He did it himself and made a ball of rice, which he placed at the head of my bed. Then he bound my wrists.... That helped my mind and spirit.

(Continues...)



Excerpted from Tort, Custom, and Karma by David M. Engel Jaruwan S. Engel Copyright © 2010 by Board of Trustees of the Leland Stanford Junior University. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Illustrations ix

Acknowledgments xi

Note on Romanization of Thai Words and Phrases xv

Introduction 1

1 Buajan's Injury Narrative 21

2 Chiangmai: A History of Globalizations 33

3 State Law and the Law of Sacred Centers 47

4 Injury Practices in a Transformed Society 77

5 Litigation 95

6 Justice 123

7 Ming's Injury Narrative 140

Conclusion 153

Notes 165

Glossary of Thai Words and Phrases 173

Names of Injury Victims Referenced in Text 175

Bibliography 177

Index 185

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