The spread of ideas about governance is part of this transformation. As we consider replicating the jury system and lay judging in developing societies we should try to understand the spread of liberal democratic forms of citizen participation not only in terms of the politics of globalization, but also as an aspect of modernization, namely the potential of these participatory justice systems to create conflicts for individuals who are embedded in traditional practices of authority, knowledge, and dispute resolution.¹⁵ Each of these legal practices furthers modernization that reduces the value of local knowledge while empowering expert systemsquite the opposite of our own folklore about citizen participation.

Globalization of participatory governance has contradictory implications for developing societies in part because it is both modernizing-disembedding individuals from their personal and familial relationships and reconstructing them as interchangeable citizens-and anti-modern through its apparent appeal to local knowledge. But that is only part of the story. As a general matter, there arc at least two distinct but interrelated transnational sets of ideas about participatory democracy that heighten these contradictory effects by communicating somewhat different ideas about participation to different audiences. Global entrepreneurship on behalf of citizen participation risks further entrenching the pattern of uneven development and growing inequality.

Entrepreneurship urging governmental reform comes in two varieties, based on their intended effects. The first is "top down" in terms of intended effects-modernizing political systems and promoting eliteled development. "Structural adjustment" makes markets safer. Civic participation serves to control corruption and stabilize markets and political systems by making government responsive (but not too responsive).¹⁶

The second form of entrepreneurship seeks "bottom up" reforms that increase the well-being of individuals adversely affected by development, though some of these changes are engineered through international and governmental interventions from above. Western NGOs and activists have inspired a world-wide movement for rights. They are less concerned about institutional reforms, like juries and lay judges, than about quality of life and basic human rights. Their interventions are often at the grassroots level.¹⁷

The discourse about participation for the purpose of developing rights and capacities of individuals arises from both western and indigenous cultures of participation, which sometimes have quite different implications. Some universal human rights have strong indigenous parallels, such as environmental rights.¹⁸ Others are more controversial; for example, the U.N. Convention on the Elimination of All Forms of Discrimination Against Women often conflicts with traditional practices and gender roles.¹⁹

One example of the potential conflict between "universal" and indigenous rights arises out of the contentious debate about "Asian values," which pits advocates for Asian development under paternalistic leadership against proponents of western individualism and individual rights. Most of' the proponents of Asian values are Asian autocrats. The dichotomy has been rejected by most scholars, but many recognize that the "civil society organizations" of Asian cultures may socialize individuals for civic participation in very different ways. While development has undermined the welfare of traditional communities, the best solution may be not to reconstruct civil society according to a western model. Any expectation that Asians, and Thai in particular, will readily join secular, western-style interest groups or readily engage in western forms of civic participation is unrealistic.²⁰

II. Participation as an American Ideal
In the United States, popular understanding of participation starts with de Tocqueville.²¹ In 1830, de Tocqueville described the buzzing commerce of small town American life as the essence of civic participation. He perceived the central role of local courts and lawyers as an expression of interconnectedness and local regulation. De Tocqueville commented that every local political issue enters the courts.²² In 1830s America, courts, in some sense, were "government by the people" because there was little other day-to-day government. Today, "adversarial legalism" is said to arise in the United States in part from the lack of responsiveness of governmental administration.²³ Courts are participatory, politically permeable, and seldom final because they can be overruled by a more refined, authoritative political will. Thus, courts function much like the original Madisonian design for government. Our courts are uniquely accessible and responsive to problems that are considered political, rather than judicial, in most societies.²⁴

This is a vision of participatory governance that does not appear to allow for disembeddedness or to defer to expert systems of information gathering and control. On closer examination, however, the seeds of both are present. dames Madison believed that the national legislature creates a space for genuinely disinterested consideration of the public good, precisely because the individuals are disembedded, and expert in governance because they are likely to be an elite. But Madison's vision was not modern because he did not expect government at higher levels to do much. Now that national government is the center of action, modernization grows from Madison's pre-modern institutional vision.

Today, developed democracies have institutionalized many different forms of citizen participation in governance, although they do not share all of them. Different forms of participation in governance have different origins, different effects, and depend on different clusters of perceptions and practices to support them. Instead of a general model, there are many particular forms of participation in particular locations. Although not all of them are successful, the idea of participation remains powerful and influential because we trust it.²⁵

A positive perspective on participatory procedure is offered by Tony Tyler and his many collaborators who have shown that trust in judicial and policy decisions increases when procedures are perceived as fair.²⁶ Participation as an interested party is one of those procedural ingredients, but third-party citizen participation, through juries or lay judges, may also increase legitimacy under the right conditions.²⁷ Jury trials, though they are a rare event in our legal system, remain a powerful and important symbol, and an arguably important check on prosecutorial, litigant, and judicial power.

III. Case study: Thai institutional Change
Thailand has been influenced by both the top down and bottom up contemporary global flow of ideas about democracy and participation. The influence of western jurisprudence on Thai legal institutions, however, reaches back to the nineteenth century. Assimilation of European jurisprudence into Thai legal culture accelerated in the nineteenth century, incorporating various elements without losing its distinctive character. Thailand adopted the form of a modern administrative state, but power remained in the hands of an autocratic ruler and his royal family, who combined the absolute authority of the Monarchy (Mahakesat), symbolic representation of the Nation (Chat), and control over the central administration of Buddhism (Satsana).²⁸ The Thai monarchy's historical compromise with western power opened Thai legal culture to the influence of powerful new values, including the concepts of equality and human rights. These new values transformed Thai politics and contributed to the creation of a constitutional monarchy in 1932.²⁹

Frank Reynolds contrasts Thai "civic religion" with the central values in American culture that Robert N. Bellah termed "utilitarian individualism."³⁰ While the American civic religion developed froth a tradition of individual freedom of conscience and dissent, treating institutionalized authority with suspicion, Thai civic religion grew from a tradition far more respectful of the authority of traditional, moral, and spiritual leaders rather than the moral conscience of individuals.³¹ Nevertheless, Thai legal culture valorized the people's welfare in a way that enabled advocates to leverage it on behalf of popular movements. Equality and democracy (if not precisely representative democracy) appealed not only to elites, but also to the Thai people generally, and observers credit growing support for these values with the strong rejection of military rule in 1992 followed by pressure for democracy and constitutional reform.³²

In 1996, coincident with the final stages of constitutional reform, the Thai economy collapsed. The collapse created an opportunity for "structural adjustment"-a prototypical "top down" flow of ideas about governance-through pressure from the International Monetary Fund to increase transparency and market stability.³³ For several decades, the World Bank, the Asian Development Bank, and other powerful international financial actors with an interest in Thailand's economic development added their influential support for governmental reforms to increase market stability, including greater participation by citizens through decentralization and promotion of civil society organizations.³⁴ Thai public opinion attributed the crash to mismanagement and corruption, adding fuel to the constitutional reform movement.³⁵ Parliament approved the draft constitution and sent it to voters just as the effects of the crash reached their height in late 1996.

Footnotes

15. Merry, supra note 8, at 139-51 (describing this process in specific conflicts between traditional and rights-generated forms of social participation in live different societies).

16. "Stakeholder participation" is described as a principal goal in the most recent World Bank country dialog monitor on Thailand that reports on World Bank funded country development programs. Ire World  BANK, Thailand-World BANK GROUP PART?NERSHIP COUNTRY DIALOGUE MONITOR: JANUARY 2004-JUNE 2005 (2005). The report praises Thailand's "emphasis on governance and decentralization" and urges further effort to improve the "quality of government services, right-size the government bureau?cracy, increase the competency levels of public sector employees, and promote demo?cratic governance."

17. Amartya Seri argues that there is an important link between the realm of formal institutions such as democracy (and presumably other forms of participation that increase responsiveness) and quality of life. In turn, enhancement of fundamental quali?ties of life (health, education) leads to faster more equitable economic development because individuals are able and motivated to participate to the full extent of their capac?ities. AMARTYA SEN, DEVELOPMENT  AS -FREEDOM 15-21 (1999).

18. See. e.g., Peter Mantis, Sovereignty, Self-Determination, and Environment-Based Cultures: The Emerging Voice of Indigenous Peoples in International Law, 23 Wis. INT?L L.J. 553, 592-96 (2005).

19. MERRY supra note 8, at 90-91.

20. See generally Randall Peerenboom, Social Networks, Civil Society, Democracy, and Rule of Law: A New Conceptual Framework, in The Politics of Affective RELATIONSHIP: EAST ASIA AND BEYOND 249 (Hahm Chaihark &Daniel Bell eds., 2004).

21. Alexis DE -Tocqueville, Democracy in AMERICA (Bruce Frohnen ed., Henry Reeve, C.B. trans., 2004) (1889).

22. See id. at 73-79.

23. See Robert A. Kagan, Adversarial Legalism: The American Way of Law (2003).

24. See, e.g., Marc Galanter, Bhophals, Past and Present: The Changing Legal Response to Mass Disaster, 10 WINDSOR Y.B. Access To just. 151 (1990).

25. The modern development of the due process clauses in the Fifth and Fourteenth amendments of the U.S. Constitution is a powerful institutional legitimator of citizen participation in adjudications. Notably, the Supreme Court's decision in Goldberg v. Kelly, 397 U.S. 254 (1970) guaranteed the right to participate in adjudication of one's property rights to the most poor and deeply subordinated members of society-welfare recipients. Yet how did it change outcomes, legal consciousness (of recipients), or U.S. culture? Increasing number of individual adjudications soon led to complex codifica?tions of rules which, in practice, proved to be no less arbitrary and manipulable. The legal consciousness of welfare recipients tilted less toward empowerment than increas?ing recognition of need for the expertise of a legally trained advocate. While Goldberg recognized the growing significance of entitlements in modern society, it made entitle?ments a symbolic political target of conservatives. A conservative Congress eventually pushed for elimination all federal welfare entitlements. Thus, Goldberg, and related cases establishing a constitutional right to participation in adjudication, contributed to unexpected institutional consequences: increasing cost, complexity, subordination of lawyers, and ultimately declining political support for entitlements. How's that for a bummer of a message about participation?

26. See generally Tom R. Tyler & Yuen J. Huo, The Overall Influence of Social Motives on Decision Acceptance, in trust IN The law. encouraging PUBLIC cooperation WITH The POLICE AND COURTS 76-96 (2002), reprinted in procedural justice: VOLUME  I 143, 157 (Tom R. Tyler ed.) (2005).

27. This is a premise of the experimental introduction of lay judging in Korea and Japan. See supra note 2.

28. See Frank F. Reynolds, Dhamma in Dispute: The Interactions of Religion and Law in Thailand, 28 LAw & Soc?Y Rev. 433, 442 (1994).

29. Id. at 442-43.

30. Id. at 441.

31. See id. at 441-43.

32. Phongpaichit & Baker, supra note 4, at 411-414 et seq. R 33. Id. 430-436.

34. See Chantana Banpasirichote, Civil Society and Good Governance: A New Chapter
in Thailand's Political Reform?, in 1 Democracy AND Civil Society IN ASIA: Globalization, DEMOCRACY AND Civet. SOCIETY IN ASIA 213, 225 (Fahimul Quadir & Jayant l.clc eds., 2004).

35. See id. at 229.