Review of Tort, Custom and Karma

David M. Engel and Jaruwan S. Engel, Tort, Custom, and Karma: Globalization and Legal Consciousness in Thailand

Stanford: Stanford University Press, 2010. Pp. xiv, 190; illustrations, photos, notes, glossary, names of injury victims referenced, index.

Reviewed by Tyrell Haberkorn.

The Unbearable Lightness of Justice

“No matter how holy the law is, I have no hope of using it. I don’t stand on the law, I stand on my own two legs, even though one of them is broken.” – Buajan, quoted in Engel and Jaruwan, page 32.

“If you have money, if you have enough money, then you have rights.” – Ming, quoted in Engel and Jaruwan, page 152.

The narratives of Buajan and Ming, two residents of Chiang Mai who survived injuries at the turn of the twenty-first century, open and close Tort, Custom, and Karma: Globalization and Legal Consciousness in Thailand, David M. Engel’s and Jaruwan S. Engel’s elegant and unsettling book about law, injury, and justice in Chiang Mai. Buajan, age 39, sustained significant injuries to her legs after being run over twice as she pushed a small child out of the way of a reckless driver at a roadside pork stand. Ming, 22, twisted his ankle while playing soccer; a few weeks later, he broke his leg after falling into a hole when a friend ran into him while he was again playing soccer. While Buajan and Ming survived similar debilitating injuries to their legs, their identification of the causes of injury and possible forms of redress were dramatically different. Buajan identified five distinct causes, broadly located across karma, the involvement of spirits, and negligence. Ming did not find either karma or the involvement of malicious spirits to be important, and instead blamed his injury solely on his own negligence. These interpretations of cause then guided Buajan and Ming to seek different remedies for their injuries. Buajan participated in a ceremony to re-attach her spirit [ขวัญ] to her body, made merit, and worked towards a settlement with the man who ran her over. Ming sought financial compensation for his medical expenses through his employer’s insurance program.

Although there are many significant differences between Buajan’s and Ming’s injury narratives, the two share a perception of the law as largely irrelevant to their attempts to secure redress. Bringing a case against the friend who pushed him while playing soccer did not occur to Ming. When his health insurance fund failed to pay his medical expenses, despite his faithful monthly payments of the premium, confronting either the company or his boss, whom he suspected of perhaps intercepting the payments, did not seem feasible. He might lose his job. Buajan is the only person whom Engel and Jaruwan interviewed who mentioned litigation without being prompted – and she only relayed that she told the reckless driver that she could sue him if he did not agree to compensate her.

Explaining the absence of the legal system in securing redress for injuries – and the broader decline in the relevance of law and the judicial process in everyday life that, Engel and Jaruwan argue, this absence reflects – is the primary project of Tort, Custom, and Karma. Rather than being engaged, or even rejected, law is a non-event that “lies dormant or is simply ignored” (p. 161). Framing their work in response to dominant narratives that assert that with the rise in globalization, liberal legalism spreads throughout the world, Engel and Jaruwan explore how the law became irrelevant in Northern Thailand the dawn of the twenty-first century. In order to do so, they combine a critical history of globalization in Chiang Mai, careful ethnography of the multiple forms of state and sacred law, and meticulous analysis of provincial litigation records. Behind the transformations in the meanings of justice and in people’s approaches to securing it after injuries are dramatic shifts in “time and space, personhood, and community” (p. 157). At once theoretically astute and methodologically innovative, this book raises a series of questions relevant for all scholars, activists, and observers concerned about the meaning and operations of law, the redress of injury and suffering, the possibility of justice, and the futures of globalization in Chiang Mai and beyond.

Engel and Jaruwan explain that they chose to orient their study around injury as a result of the distance between globalization and the everyday, local events of injury. Simultaneously, injury makes it possible to examine “a constellation of concepts that have fundamental importance for the role of law,” which include causation, compensation, and justice (p. 11). The rigorous use and analysis of different forms of evidence also mean that Tort, Custom, and Karma challenges scholars and activists to think about how creatively to approach questions of law and justice at a time when their importance in the minds of our interlocutors seems to be declining. As Engel and Jaruwan note, this question is complicated: the Thai words for “law” [กฎหมาย] and “justice” [ความเป็นธรรม, ความยุติธรรม] do not necessarily carry the received meanings of the English terms. Instead, in the case of law [กฎหมาย], the Thai word implies the narrow worlds of policing and the prevention of crime, and in the case of justice [ความเป็นธรรม, ความยุติธรรม], the very structure of the words and the root of thamma [ธรรม] indicate implication in a Hindu-Buddhist worldview. The authors raise a question relevant for anyone working on ideas across languages, societies, and histories: “How then to explore the concept of ‘justice’ and its relationship to ‘law’ in contemporary Thailand without introducing distortions and non-Thai preconceptions into the very questions we ask?” (p. 126). They resolve this challenge by asking interlocutors to talk about their injuries, and by then working within those interlocutors’ frameworks of thought and narrative. As Engel and Jaruwan note, “…we consider the very act of telling these stories to be an important social event. An injury narrative is an exercise in meaning creation” (p. 17). In Tort, Custom, and Karma, it is not only scholars who are making meaning.  The residents of Northern Thailand are also making meaning as they survive injuries amidst transformations at the intersection of justice and globalization.

The use of globalization – cast as both a broad, long-term process and one specifically read through Thai legal history – in Tort, Custom, and Karma offers a welcome exception to the often vague and undefined broader body of scholarly work about “globalization.” In particular, the use of Arjun Appadurai’s five different frames of “global cultural flows” – ethnoscapes, mediascapes, technoscapes, financescapes, and ideoscapes – both illuminates the changes in legal consciousness in Thailand and usefully elaborates Appadurai’s ideas.* The reason that shifts in transportation and communication patterns and massive out-migration by rural villagers to seek work in urban centers or abroad matter is that the shape of the world “and each individual’s place in it are no longer what they were prior to 1975” (p. 46). Engel and Jaruwan argue that these shifts – in the very ways in which individuals live in and create community – have in turn had profound impacts on law and legal consciousness in Chiang Mai.

These impacts are examined in the twin frames of  state law and what Engel and Jaruwan call “the non-state law of sacred centers,” which “radiates outward from a locus having supernatural potency” and is a “system of unwritten customary norms and procedures … strongest at locations closest to the center” (p. 56). These two ideas of law reflect different spaces, times, selves, communities, and forms of authority. After Lanna was colonized by Siam, state law represented the impersonal, official law of Bangkok, whereas the law of sacred centers was organized around the units of the household and village and governed by the spirits. Engel and Jaruwan argue that while these two forms of law were previously in competition with each other, they also accommodated each another. For example, a headman could function “not only as a lower-level government official but also a spokesperson for customary legal norms” (p. 76). What they found at the beginning of the twenty-first century, however, is that these two realms of law have both broken off from one another and declined in relative importance.

If neither state law nor the law of sacred centers is relevant to people who have been injured and are seeking redress, then where do these people go in search of justice? The answer seems to be that redress is elusive and justice even more so. The transformations caused by globalization in the 1980s and 1990s catalyzed changes in the composition of communities, which in turn caused local spirits to lose power. Injuries have been both relocalized – by which Engel and Jaruwan mean that they occur far from the place of origin of the injured person – and delocalized – by which they mean that the place of injury has declined in importance in favor of the importance of the individual karma [กรรม] of the injured person. This is a new, insightful take on the increased atomization of life. What makes this particular form of atomization so devastating is that, if injury is caused by the karma of the injured person and/or other involved parties, then it is very hard to imagine what redress, let alone justice, might look like. Even as personal injury rates have grown tremendously, the rate of injury tort litigation has declined over the last thirty years. While they cannot draw a direct causal link, Engel and Jaruwan note that the changes in legal consciousness and the decline in litigation rates occurred over the same period. With respect to state law, they chillingly note:

The pursuit of legal rights and remedies now seems a form of delusion and attachment: a failure to understand the root cause of misfortune and more likely to increase suffering than to end it. (p. 94)

 

While Engel and Jaruwan are careful to note that their work is limited to injury cases, the changes in the meaning and status of different forms of law that they track may be relevant to other, related questions. Drawing on different injury narratives, they argue that “injustice” encompasses “a sense of imbalance and inequity in the social order and in nature,” and “justice” refers to “a restoration of balance and harmony” (pp. 128-129). While the shifts in tort practice prompted by processes of globalization are explored well in Tort, Custom, and Karma, exploring these ideas within a more explicitly national Thai context and a different arena of the law would be an important addition to the growing body of academic and activist work about law. For example, at a time when many different actors are arguing about what constitutes truth and accountability after the violence of April-May 2010, how to secure justice is an urgent and elusive question. In addition, the sharp rise in the number of prosecutions for alleged lèse majesté under Article 112 of the Thai Criminal Code may suggest that even as state law becomes less relevant as a form of redress for citizens, it is becoming an increasingly important tool of repression for state and elite interests.

David Engel and Jaruwan Engel close their book by noting,

The dog that does not bark is precisely the phenomenon that we need to study and explain. The residents of northern Thailand may speak for others around the world when they characterize the law as increasingly remote and justice in this lifetime as more unattainable than ever before. If so, it is the decline of law that demands our attention, and its absence from everyday life may be the hallmark of our age. (p. 161)

The lines are particularly acute when read with the statements from Buajan and Ming that serve as epigraphs to this review. If the law is shakier than a broken leg that cannot bear weight, and rights are only for the wealthy, then it is no wonder that the law is dormant. What would it take for the law to bear the weight of justice in Thailand?

Tyrell Haberkorn is a research fellow in the Department of Political and Social Change in the School of International, Political, and Strategic Studies of the Australian National University. Her book Revolution Interrupted: Farmers, Students, Law and Violence in Northern Thailand was published by the University of Wisconsin Press in May 2011.

* Arjun Appadurai, Modernity at Large: Cultural Dimensions of Globalization (Minneapolis: University of

Minnesota Press, 1996).