David M. Engel

Rights as Wrongs: Legality and Sacrality in Thailand

Abstract Interviews with injury victims in northern Thailand (Lanna) conveyed a pervasive sense of injustice in their daily lives but a notable absence of the language of rights. Despite the proliferation of rights-based discourses, organisations, and institutions in Thai society, interviewees tended to disfavour the pursuit of rights because they believed that resort to the legal system would subvert Lanna traditional practices and would add to the bad karma that caused their suffering in the first place. This article traces fundamental contradictions in northern Thai concepts of justice arising from the imposition of “modern” systems of law and religion by the central Thai (at that time Siamese) government in the late nineteenth and early twentieth centuries. It views the legal modernisation project as a continuation of earlier efforts to impose central control over outlying regions by curtailing what were viewed as deviant cultural practices in order to weaken rival political, religious and legal traditions. The transformation of law in Lanna – from the Mangraisat tradition to a European-style legal framework – should therefore be viewed in conjunction with other cultural and political transformations initiated from Bangkok. Current expressions of disaffection and confusion about justice are rooted in this broader historical process.

Religion, Modernity, and Injury in Thailand

When Thailand’s1 ruling elite transformed the polity in the late nineteenth and early twentieth centuries and created a nation-state with European-style courts and law codes, it proceeded down a familiar path toward “legal modernity.” The ideology of modern law is said to rest on a shift from religious to secular legitimation. Fitzpatrick (1992, pp. 54, 56) describes this imagined shift toward secularization as a basis for what he calls “the mythology of modern law”: The story is so well known as not to bear repetition without tedium. To summarize, it is a story of the separation and dominance of a secular power in the initial form of the centralizing monarchies of medieval and early modern Europe. Although some god is invoked for a time as a final source of law, political rule assumes a secular sweep in which the divine becomes incidental or irrelevant. Natural and divine law become subordinate to the self-sufficient determination of positive law—the law posited by the will of the sovereign. Like its divine counterpart, law is autonomous and self-sustaining. It is independent of any exterior reality. Thus, the mythology of legal modernity rests on a new conceptual distinction between law and religion, which are necessarily separated, as Thomas Jefferson famously remarked, by a “wall” between church and state. Modern law, writes Unger (1976, pp. 84–5), “presupposes that no one group in the society has a privileged access to religion and moral truth,” and that the proper role of law is therefore to establish a neutral “process for conflict resolution” rather than to endorse one set of cultural practices or religious beliefs over another.