NEW YORK LAW SCHOOL LAW REVIEW

collapse of the Thai bhat in 1996 thwarted their plans to reject most of the reforms.¹⁷ International agencies, principally the World Bank and the Asian Development Fund, imposed “structural adjustment” as a condition of bailout, including new laws to regulate the market.¹⁸ Their intervention also sent a clear message not to derail the so-called “People’s Constitution,” and the military ultimately agreed by supporting adoption as written after the draft constitution received an overwhelming vote of approval in a popular referendum.¹⁹

This history is complex, and it includes international flows of information, ideas, resources, and influence at many levels as well as the Thais’ own diverse and complex conceptions of governance and rights.²⁰ After re-electing billionaire businessman Thaksin Shinawatra Prime Minister by an overwhelming majority in 2005, the BBC reported in mid-April 2006 that crowds of protesters in the capital city kept the Prime Minister, now viewed as corrupt, from entering his office, provoking a threat of military reprisal. Shinawatra had a history of treating some popular protesters harshly and using the military to suppress and harass demonstrators in the Muslim South and elsewhere; although this is not what brought the protesters into the streets. A leading human rights lawyer who represented the Muslim leaders was harassed through defamation suits brought by Shinawatra’s family for statements he made as an advocate. In 2004, the lawyer was abducted and murdered, although the government claimed no connection with the perpetrators. In 2006, Shinawatra resigned as Prime Minister amid charges of corruption (but remains as “caretaker” until new elections are held) rather than face a vote of no confidence.²¹ These recent events suggest that rights and democracy still face challenges in Thailand.

The hypothesis that the constitutional change will grow a classic civic culture has been tested through survey research presented at the KPI conference.²²

CULTURE, POWER, AND LAW

Surveys of popular opinion show that the Thai people understand what democracy is and that they strongly embrace the electoral process.²³ But quite contrary to the classic concept of a civic culture, the Thai people also expressed little tolerance for give and take among opposing political views or for political diversity.

Further, widespread vote buying, easily documented in other ways, went largely unreported when respondents were asked about their knowledge of corruption. Better educated, urban Thai were surprisingly skeptical of democracy and intolerant while rural, less educated Thai overwhelming supported democracy (but not necessarily the rights of others).²⁴ These survey results raise questions about the kind of civic culture growing in Thailand, but do not answer more pressing questions about law — whether rights are observed, whether policies are more egalitarian, whether office holders are more accountable, and generally whether law is a meaningful presence in Thai citizens’ daily encounters with government and each other — all goals of activists who promoted the changes. My ambition as a scholar is to conduct empirical research on these questions through further surveys and case studies of the impact of new rights and democratic reforms mandated by the constitution.

Ironically, as emerging market societies are pressured to stabilize their economies by securing individual and property rights through more regulation and the rule of law, criticism of government and regulation in developed western societies has intensified, also in the name of strengthening markets. Pro-market critics of developed democracies argue that governments are too large and inefficient and should give way to the private sector and to international treaties embodying the rules of the global market.²⁵ The pressure for economic growth has given the discourse of rights different faces in the global North and global South — advocating downsizing the public domain and social citizenship in developed societies at the very moment when the public domain and responsiveness to public welfare are being promoted through democratization and expanding the rule of law in developing societies. How the two faces of this discourse about the rule of law in the global economy interact remains to be studied. Of course, the goals of many human rights advocates contrast with both of these views of market development in that they seek protection from exploitation and oppression rather than more rapid economic development. Some scholars view the spread of democracy, decentralization, and the rule of law in societies with emerging economies as an imperialistic movement of culture and institutions from the global North to the global South.²⁶ Other advocates, including Nobel Prize-winning economist Amartya Sen, argue that democracy and the rule of law make policy decisions more egalitarian,²⁷ while still others maintain that democracy, now a global ideal, will make difficult choices in a developing society more legitimate.²⁸ Many scholars have warned of what they call “transplant” risks,²⁹ namely the risk that regulation and governance programs established in western societies will have different meaning and unpredictable effects when transplanted to other societies. The existence of such risks is supported by studies showing that the meaning and effects of rights are closely related to variations in culture and context, even in societies in which rights and the rule of law are said to be well established.³⁰

In the remaining parts of this essay, I will describe a path for my research on the effects of transplanted legal institutions, taking as my starting point a foundational discussion of “legal consciousness.”³¹

III. THE LOCAL CONTEXT OF LAW
It comes as no surprise to law students that the law does not always seem to play out as the words in the constitution, statutes, or court decisions might at first suggest. Law students quickly learn to live with ambiguity because ambiguity, as well as the illusion of certainty, is essential to the law’s power in the hands of an advocate. Creating meaning through purposive construction and contextual understanding is the lawyer’s art. We learn that multiple meanings are always possible, and any one of them may become the authoritative meaning when we are successful advocates, despite how stable the law seems in our everyday world.

In everyday life, law often has texture, a feel of continuity, and a reassuring, if unarticulated presence that is undisputed because it is taken for granted. As one pair of scholars observed recently to illustrate this point, “we respect our neighbors’ property because it is theirs.”³² We speak openly and in public to one another about what we like or dislike about those in power because we are free to do so. More tentatively perhaps, we are indignant with police or motor vehicle department clerks when they violate our expectation of responsive and responsible conduct. We know the police and bureaucrats have the power to inconvenience us temporarily, and so we are strategic; but we do not live in fear of their arbitrary power.³³ We conduct these daily affairs guided by “practical consciousness,”³⁴ meaning we act knowingly but not self-consciously, in that we do not think about the UCC bills and notes sections every time we use the ATM to deposit a check or get cash. Asked to explain why we feel secure conducting our lives this way, we often choose to talk about accountability and, ultimately, about the rule of law (or some of us, about the UCC). But through our unselfconscious behavior, we have given meaning to the law before we have reflected on our reasons for doing so.

This is the power of legal consciousness.

Footnotes

17. Andrew Harding, South East Asia, 1997-2003: Two Case Studies on the Politics of Law and Development, in GLOBALIZATION AND RESISTANCE: LAW REFORM IN ASIA SINCE THE CRISIS (Christoph Anton, ed., forthcoming Apr. 2007), available at http://www.law.uvic.ca/seals/forums/attachment.php?s=B30a02ae3f1919cce642d13e430051d5&attachmentid=6.
18. Nobuyuki Yasuda, Law and Development from the Southeast Asian Perspective: Methodology, History
and Paradigm Change, in LAW AND DEVELOPMENT IN EAST AND SOUTHEAST ASIA 45, 47–52 (Christoph Antons ed., 2003). See generally Harding, supra note 17.
19. See CHRIS BAKER & PASUK PHONGPAICHIT, A HISTORY OF THAILAND 255–57 (2005).
20. For example, the Constitution repeatedly refers to government as “the democratic regime of government with the King as Head of the State.” See CONST. OF THE KINGDOM OF THAIL., B.E. 2540 (1997). The monarchy is central to the people’s allegiance, and it is the only aspect of constitutional life that has not
been subjected to reform. See generally Hewison, supra note 14.
21. See Wikipedia, Thaksin Shinawatra, After the April 2006 Election, http://en.wikipedia.org/wiki/
Thaksin_Shinawatra#Thaksin_proposes_reconciliatory_panel (last visited Nov. 9, 2006) (summarizing
sources, largely newspaper articles, describing the elected PM’s status as self-proclaimed “caretaker” head
of government).
22. See Robert B. Albritton, Consolidating Democracy in Thailand: The First Four Years of Democracy
under the Constitution of 1997, Paper delivered at the International Political Science Association Meeting,
Fukuoka, Japan (Jul. 12, 2006).
23.See generally Robert B. Albritton & Thawilwadee Bureekul, Developing Democracy Under a New
Constitution in Thailand 6 (Asian Barometer: A Comparative Survey of Democracy, Governance, and
Development, Working Paper No. 28, 2004).
24. See id. at 17.
25. See ALFRED C. AMAN, JR., THE DEMOCRACY DEFICIT: TAMING GLOBALIZATION THROUGH LAW REFORM (2004).
26. Indeed, an important factor fueling these changes is pressure from international finance and development institutions such as the World Bank and the International Monetary Fund, which offer financial assistance to countries with failing economies in exchange for “structural adjustments,” including promises to reduce expenditures for domestic social programs, to reduce inflation, and to use all available resources to pay off loans by foreign investors. Major political and economic actors, such as the United States, also advocate adoption of market friendly reforms including laws regulating markets for the benefit of investors, bankruptcy law, and protection of intellectual property, property rights held mostly by U.S., and European-owned transnational corporations. “Third wave” globalization also includes pressure by powerful global market participants for adoption of institutions of political accountability familiar in developed western societies to counter a perceived inability of governments in many emerging market societies to control instability, extreme inequality, and corruption. Boaventura de Sousa Santos & C.esar A. Rodriguez-Gravito, Law, Politics, and the Subaltern in Counter-hegemonic Globalization, in LAW AND GLOBALIZATION FROM BELOW 1, 2 (Boaventura de Sousa Santos & C.esar A. Rodriguez-Gravito eds., 2005). See generally MICHAEL GOLDMAN, IMPERIAL NATURE: THE WORLD BANK AND STRUGGLES FOR SOCIAL JUSTICE IN THE AGE OF GLOBALIZATION (2005); JOSEPH E. STIGLITZ, GLOBALIZATION AND ITS DISCONTENTS (2003).
27. See generally AMARTYA SEN, DEVELOPMENT AS FREEDOM (1999).
28. See generally 1 WORLD BANK, THE WORLD BANK LEGAL REVIEW: LAW AND JUSTICE FOR DEVELOPMENT (Rudolph V. van Puymbroeck ed., 2003).
29. See MERRY, supra note 4, at 19, 134–39.
30. A particularly controversial claim about transplantation risks has been made by leaders of some developing Asian societies who claim that an authoritarian, non-democratic path to development is consistent with “Asian values,” and that Western “liberal” values are inappropriate and harmful for their societies. See generally ASIAN DISCOURSES OF RULE OF LAW THEORIES AND IMPLEMENTATION OF RULE OF LAW IN TWELVE ASIAN COUNTRIES, FRANCE AND THE U.S. (Randall Peerenboom ed., 2004); THE EAST ASIAN CHALLENGE FOR HUMAN RIGHTS (Joanne R. Bauer & Daniel A. Bell eds., 1999). The distinction is sometimes drawn between individual rights and collective rights. As Professor Merry has pointed out,
the distinction itself is specious — often depending on the source of the benefits that the rights holder is to enjoy rather than a difference in the group nature of the interests at stake. E-mail from Sally E. Merry, Professor of Anthropology and Law and Society, N.Y. Univ., to author (Jun. 14, 2006, 10:21 EST) (on file with author). Thus, voting, freedom of speech, and ownership of property are said to be individual, while a right to housing, food, or an education is viewed as a different order; even though both are meaningful only because they are widely, and at best universally, enjoyed thus shaping the quality of the society as a whole as well as the lives of individuals. Critiques of the Asian values claim by scholars in the
East as well as the West are well established, pointing to the overlap between societies and diversity within societies. The Asian values claim is often made to legitimate traditional forms of hierarchical and non-democratic authority, thus deriving the legitimacy of authoritarian rule from traditional respect for family and community. There is no necessary link between these levels of social organization, and indeed, in countries such as China, Vietnam, and Thailand, the mix of forms varies greatly rather than establishing an “Asian” pattern.
31. Merry, supra note 5.
32. PATRICK EWICK & SUSAN SILBEY, THE COMMON PLACE OF LAW: STORIES FROM EVERYDAY LIFE 15 (1998).
33. At the time this essay was written, a fractious mayoral campaign was developing in Newark, New Jersey
between Cory Booker and the incumbent Sharpe James. James was shown engaging in numerous campaign irregularities in a well publicized documentary, Street Fight, which I show to my Municipal Law class. James began five terms previously as a reform mayor, but after achieving wide popularity, has been accused of cronyism and using the police to harass his opponents. I ask my students how such a culture could develop — affirmed by re-election — from such promising beginnings. STREET FIGHT (Public Broadcasting System 2006).
34. Sociologist Anthony Giddens describes two forms of consciousness which guide our daily lives. One is “discursive consciousness” which is developed from reasons for doing things. The other is “practical consciousness” or the unselfconscious routines that allow us to get dressed and leave for work, open a door, or replace a light bulb without having to think about it. ANTHONY GIDDENS, THE CONSTITUTION OF SOCIETY: OUTLINE OF THE THEORY OF STRUCTURATION (1986).