If their claims are treated as unimportant, unreasonable, or insignificant, they are less likely to take a rights approach to their problems. On the other hand, if their experience of claiming rights is positive, in that institutional actors support and validate these claims, they are more likely to see themselves as rights-bearing subjects and to claim rights in the next crisis. . . . Poor women think of themselves as having rights only when powerful institutions treat them as if they do.⁷¹

Thus, “[i]t is not unusual for individuals to retreat from a rights consciousness of grievance to a kin-based one. Nor is it surprising that one would try on this identity, drop it, and try again.”⁷²

This conundrum — the reciprocal effect of rights consciousness and effectiveness of rights — poses a particularly important and complex challenge for human rights advocates. Professor Merry places this dilemma in a practical light. Women may know about new rights that protect them from violence; at the same time, they have learned to deal with oppressive, sometimes violent, relationships as matters of kinship and custom imposed and overseen by others — the family, the village, or the religious community. These dual discourses have different implications for understanding how these women perceive their identities and for determining important continuing relationships. Rights that work for them will alter their perception of rights, the rule of law, and perhaps even of themselves. Rights that are not taken seriously by authorities soon diminish in importance and have less of a role in shaping consciousness of alternative courses of action or identity.⁷³ The conundrum is: Where does the cycle begin? Most civil rights laws depend largely on complaints by victims.⁷⁴ The victim must make a strategic choice among alternatives that have uncertain outcomes. Merry’s fieldwork shows that it is here that the dynamics of social interaction play an important role in establishing features of every day life that are taken for granted or by creating possibilities for new perceptions.⁷⁵ “Taking on rights,” Merry concludes, “is a difficult process and fraught with ambivalence. Asserting rights often comes at a price.”⁷⁶

At every level of discourse described by Merry — at the U.N., national program development, and local implementation — rights are contested, resisted, strategically reinterpreted, and ignored. Yet, Professor Merry’s research shows that rights have the capacity to give meaning to social relationships and to influence unselfconscious social behavior. By examining CEDAW, she sought to understand how contentious rights debates might (or might not) lead to reduction in practices that were discriminatory or violent toward women.⁷⁷ Change occurred in many societies, although unselfconscious and uncontested equal treatment of women remains a distant goal. The most promising path, she concludes, involves use of local knowledge of customs and values to facilitate adaptation and accommodation rather than coercive implementation of the transnational community’s vision of universal rights.⁷⁸

VI. THE RULE OF LAW IN THAILAND

Like CEDAW, Thailand’s new constitutional provisions for rights and democracy are formal, “top down” prescriptions, and like CEDAW, Thailand’s constitutional language was negotiated by a committee at the center of broader interactions among many national and transnational participants. Unlike CEDAW, however, Thailand’s constitution reflects a long history of “bottom up” pressure for democracy and the “right to have rights.” Thailand’s constitutional language derives meaning from Thai legal culture and political history as well as from the transnational flow of ideas and advocacy. Recent surveys suggest that concepts like democracy and rule of law are familiar to most Thai, although they are not necessarily understood in the way that they are by the transnational community.⁷⁹

Merry’s research on globalization of rights holds many lessons for a study of the evolving role of rights in Thailand. “Translating rights into the vernacular” is Merry’s shorthand for the process that involves translating rights into local contexts, which gives shape to the effects of those rights. First, rights must make sense to the rights bearer. That is, the rights bearer must perceive the possibility of benefits from “taking on” rights. This translation may involve interpretation of rights to fit a local context, by giving a contextual meaning to “injury,” “discrimination,” or “inequality.” Rights may seem irrelevant when the individual perceives no wrong or injury, and those rights may be rejected when the price of changing ongoing relationships appears to be too great. Rights advocates hope that rights will be respected and accommodated with a minimum of change in the desirable qualities of ongoing relationships, but this outcome has been rare in the implementation of women’s rights. Second, shaping rights to fit local contexts is facilitated by translators who acquire power over when and how rights become active. Merry’s anthropology of rights in a New England court describes judicial power to prevent complainants from obtaining a remedy for the violation of their rights and instead to seek a compromise by choosing a therapeutic rather than legal discourse. Her research on women’s rights in five societies suggests the power of a broad range of local translators as well as translators at higher political and institutional levels.⁸⁰ These steps — individual perception, culture, ongoing relationships, and translation — provide starting points for research on rights consciousness and the power of translators to facilitate or impede its
development.

In my concluding section, I describe two ethnographic studies of recent struggles over the rule of law in Thailand to illustrate the usefulness of Merry’s anthropological approach to rights consciousness. The first is a study of local elections conducted shortly before constitutional reform in rural villages in Thailand. ⁸¹ The research suggests that old patterns of deference may not be altered by the renewed emphasis on election integrity in formal constitutional language.

The second study describes the emergence of a social movement of impoverished villagers in Northeast Thailand to protect their homes and livelihood from deforestation, dam building, and other massive development projects. The rise and success of this movement suggests that under the proper conditions, participation and justice can be given meaning by non-electoral means and through the initiative of ordinary people, but rights might play a limited role.

An ethnographic study of village democracy in rural northern Thailand found that a traditional discourse of reciprocal obligations between patrons and clients created an alternative framework for perceiving authority and legitimacy that is different from the transnational meaning of democracy or rule of law.⁸² Patron–client relationships prevalent in Thailand, as well as in many other Asian and Latin American societies, create continuing bonds of reciprocity. Instead of voting for candidates on the basis of promises to serve the public and obey the law for which they will be held accountable, some voters displayed loyalty to candidates with whom they have a continuing patron–client relationship. A candidate in a position of power as an employer, land-holder, or respected village leader may have created many clients. Further, other relationships may likewise create a sense of obligation among some voters, such as a candidates’ financial support for a temple and endorsement by its principal monk. While critics point to the widespread practice of vote buying by candidates, surveys reveal that many voters do not perceive this practice as a form of corruption. One scholar suggests that the proper understanding of such payments is that they play into the tradition of reciprocity created by patron–client relations and are perceived as creating an obligation rather than as a payoff to ignore a civic responsibility.⁸³

Footnotes

71. Id.
72. Id. at 217.
73. Indeed, local authorities are unlikely to support human rights consciousness until they themselves perceive the treatment of women in terms of rights and believe in taking them seriously.
74. With this problem in mind, CEDAW requires annual reports by signatories and invites critique by NGOs and the members of an oversight body in order to promote compliance without exclusive reliance on victims. Significantly, comparison of the effectiveness of civil rights laws in the United States suggests that government-initiated processes, such as those prescribed by the Voting Rights Act, have been far more effective in eliminating race discrimination than those which rely on victims to bring compliance lawsuits. See generally RICHARD LEMPERT & JOSEPH SANDERS, AN INVITATION TO LAW AND SOCIAL SCIENCE: DESERTS, DISPUTES, AND DISTRIBUTION (2d ed. 1989).
75. See generally MERRY, supra note 4.
76. Id. at 216.
77. Id. at 21–27.
78. See id. at 227–29.
79. See Albritton & Bureekul, supra note 23.
80. Professor Merry’s research was conducted in Hawaii, Delhi, Beijing, Fiji, and Hong Kong.
81. The new Constitution establishes an independent election oversight commission intended to reduce vote buying and other forms of corruption. CONST. OF THE KINGDOM OF THAIL. 136–148. While the commission has had some success, some observers contend that there is no reason to believe that election practices have been radically altered as a result of constitutional reform. Scholars still debate whether survey data demonstrate that corruption is a continuing problem or a problem that has been greatly exaggerated. For a helpful analysis of the problems of measurement and interpretation see Albritton & Bureekul, supra note 23, at 39. Post-reform election practices await further careful ethnographic research.
82. In most societies, including our own, there are alternative discourses about responsibility for the well being of others and about responsibility for injury to others. My study of the ADA found that the barriers created by a disability were sometimes perceived in non-legal terms that rendered the law irrelevant or inappropriate. See ENGEL & MUNGER, supra note 44, at 142–67. Professor Merry similarly found that CEDAW implementation encountered alternative discourses about women’s roles in society that seemed to conflict with CEDAW’s underlying values. MERRY, supra note 4, at 8. CEDAW is grounded in a secular belief that women should be equal to men, socially autonomous, and free of oppressive relationships, but one or more of these prescriptions often conflicts with valued local traditions.
83. DANIEL ARGHIROS, DEMOCRACY, DEVELOPMENT AND DECENTRALIZATION IN PROVINCIAL THAILAND 230 (2001).