Tort, Custom, and Karma

Globalization and Legal Consciousness in Thailand

David Engel, Jaruwan S. Engel

• Publisher: Stanford Law Books
• Year: 2010
• ISBN:
  9780804773751
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto del risarcimento per fatto illecito

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.

1

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 nonexistent 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 ...