Culture, Power, and Law: Thinking About the Anthropology of Rights in Thailand in an Era of Globalization *

I. INTRODUCTION: RIGHTS AND THE PROBLEM OF GLOBAL TRANSPLANTATION

Advocacy for human rights, democracy, and the rule of law is sweeping the globe and reshaping governance in developing societies.¹ Societies influenced by this tidal wave have their own legal cultures, and many have had limited experience with popular participation in government or accountability under law. The global rights discourse is often welcomed by advocates within these societies, although the legal reforms it inspires are imposed from above through treaties, international conventions, or domestic legislation and constitutional reform. The architects of change say that reforming the law will “grow” a civic culture supporting public involvement and government accountability,² but is such an expectation well founded where the particular institutions or programs, and perhaps the ideas themselves, have been transplanted from societies where their form and function have been shaped by a long history? American legal anthropologist Sally Engle Merry is a leading ethnographer of rights.³ Her research examines how law becomes an active element in the ongoing life of ordinary communities. She has also studied globalization, most recently the grassroots effects of a human rights treaty on gender violence. Her research both illuminates the risks of transplantation and suggests a path to pursue in answering this question.⁴

In this essay I first describe a globalization project of my own, and then I turn to Professor Merry’s seminal essay on “legal consciousness,” published in this Law Review in 1992 for guidance.⁵ I also describe her recent book on the implementation of the United Nations’ Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”), which provides a helpful model of her method at work. The essay concludes with further questions about my own project and the challenges of understanding how law can be used to protect basic rights in any society.

II. THE RULE OF LAW AND THAILAND’S CONSTITUTIONAL MOMENT
The meaning of “rule of law” is itself the subject of an enduring debate in our own society.⁶ Minimally, rule of law implies observance of known rules and procedures for exercising government authority.⁷ While in our own society we associate the rule of law with accountability for observance of substantive principles, such as those contained in the Bill of Rights, as well as with observance of rules, observance of rules on its own has benefits even for the dictator who desires to hold subordinates and subjects to account. This “thin” version of the rule of law can have the ironic effect of undermining the legitimacy of attempts to increase the responsibilities of the sovereign or expand the rights of citizens on the grounds that neither the process of change nor particular proposals for change are in accord with existing law-based prescriptions.⁸

In Europe, the United States, and other established democracies, a “thick” version of the rule of law includes principles of accountability that apply to the sovereign.⁹ This version is sometimes referred to as “liberal legality,” which combines observance of rules with restraints on the sovereign in the form of substantive and procedural rights enjoyed by citizens and their privately created entities (such as corporations).¹⁰ This “thick” version of the rule of law is attractive to human rights advocates and to many citizens in societies in which government is not responsive to popular will.¹¹ Liberal legality is also promoted in developing societies by powerful international organizations and political actors like the World Bank and the United States, which believe that adoption of human rights and mechanisms of accountability will make governments more stable and market friendly.¹²

My research project concerns the effect of formal “thickening” of democracy and rights under Thailand’s most recent constitution. In December 2005, King

CULTURE, POWER, AND LAW

Prajadhipok’s Institute (“KPI”) in Bangkok sponsored a conference on the progress of electoral democracy in Thailand.¹³ King Prajadhipok was Thailand’s last absolute monarch, abdicating under pressure in 1932 and replaced by a constitutional democracy. Although a lifelong opponent of this change, King Prajadhipok left an ironic legacy in his written abdication, bequeathing his power

— in spirit if not in law — to the people of Thailand rather than to the government that would succeed him. It is in memory of this legacy that the Institute carries on its democracy research.¹⁴ In 1997, Thailand experienced another constitutional moment, the successful conclusion of five years of contentious constitutional reform following a military coup in 1991, bloody riots, and restoration of elected government in 1992. The coup itself was at first supported by the Thai people because the democratically elected government that was deposed was highly corrupt. But the military did not step down once the corrupt politicians were removed; instead, the generals showed every sign of continuing their repressive regime. The Thai people, especially the citizens of Bangkok, rebelled, organizing large demonstrations that were suppressed by force. This was not the first occasion on which the Thai had rebelled against military rule, but something new was indeed taking place. This time the rebellion was viewed on a global stage as the world watched nightly on CNN.

The story of this recent evolution is truly remarkable. The current king, Bhumibol Adulyadej, who is revered above all other authorities in Thailand though he has little formal power, called the leaders of the military and the demonstrators to the throne room where they prostrated themselves.¹⁵ Civilian rule was restored soon after, and the process of drafting Thailand’s sixteenth constitution began. By popular demand, the constitution was drafted by a committee of experts rather than by politicians. The final draft contained an extensive bill of rights, mandates for popular participation in government, new agencies to oversee elections and to punish corrupt officials, and a mandate for devolution of power to democratically elected local governments.¹⁶

Parliament and career central administrators were opposed to the constitution and would have blocked or weakened provisions guaranteeing the “right to have rights,” stronger democracy, and greater accountability by rewriting the commission’s draft if they had been left to their own devices. But the coincidental

Footnotes

1. Some of these societies include Hawaii, Delhi, Beijing, Fiji, and Hong Kong.
2. For example, the World Bank’s most recent development initiatives have contained a substantial rule of law component. The World Bank claims, for example, that “good governance and strong public institutions lie at the core of achieving sustainable development” and “there is growing evidence that countries with vibrant civil societies are more likely to build more equitable and sustainable patterns of development,” where “helping governments strengthen their legal, regulatory, political, and institutional frameworks” contributes directly to this goal. See World Bank, Civil Society — World Bank Development
Approaches and Initiatives, http://go.worldbank.org/FWZHYU3220 (last visited Jan. 25, 2007).
3. Sally Engle Merry is a Professor of Anthropology at New York University and the author of numerous influential books and articles on the anthropology of rights, including: SALLY ENGLE MERRY, COLONIZING HAWAII (Sherry B. Ortner, Nicholas B. Dirks & Geoff Eley eds., 1944); SALLY ENGLE MERRY, GETTING JUSTICE AND GETTING EVEN: LEGAL CONSCIOUSNESS AMONG WORKING CLASS AMERICANS (1990); Sally Engle Merry, Legal Pluralism, 22 LAW & SOC’Y REV. 869 (1988); Sally Engle Merry, Spatial Governmentality and the New Urban Social Order: Controlling Gender Violence Through Law, AM. ANTHROPOLOGIST, Mar. 2001, at 16 (2001); Sally Engle Merry, Transnational Rights and
Local Activism: Mapping the Middle, AM. ANTHROPOLOGIST, Mar. 2006, at 38.
4. See generally SALLY ENGLE MERRY, HUMAN RIGHTS & GENDER VIOLENCE TRANSLATING INTERNATIONAL LAW INTO LOCAL JUSTICE (2006).
5. Sally Engle Merry, Culture, Power, and the Discourse of Law, 37 N.Y.L. SCH. L. REV. 209 (1992).
6. See BRIAN Z. TAMANAHA, ON THE RULE OF LAW: HISTORY, POLITICS, THEORY (2004); see also
DAVID HELD, MODELS OF DEMOCRACY (1996).
7. See TAMANAHA, supra note 6, at 92–93.
8. My colleague, Ruti Teitel, has made such an argument about the ironic effects of the rule of law on
transitional justice. See RUTI G. TEITEL, TRANSITIONAL JUSTICE 21 (2000).
9. See generally TAMANAHA, supra note 6, at 102–13.
10. See Stuart Scheingold, “The Dog That Didn’t Bark”: A Sociolegal Tale of Law, Democracy, and
Elections, in THE BLACKWELL COMPANION TO LAW AND SOCIETY 526 (Austin Sarat ed., 2004).
11. As Tamanaha notes, the “thick” version — liberal legalism — has strongly anti-democratic implications when individual rights conflict with the political power of the majority. See TAMANAHA, supra note 6, at 111. Some progressive human rights advocates argue that the restrictive implications are expanding as neoliberal governments in Europe and America shrink the public sector through privatization and deregulation, thereby expanding the scope of private rights. See Boaventura de Sousa Santos, Beyond Neoliberal Governance: The World Social Forum as Subaltern Cosmopolitan Politics and Legality, in LAW AND GLOBALIZATION FROM BELOW: TOWARD A COSMOPOLITAN LEGALITY 29 (Boaventura de
Sousa Santos & Cesar A. Rodriguez-Garavito eds., 2005).
12. See TAMANAHA, supra note 6, at 136.
13. Robert B. Albritton, Consolidating Democracy in Thailand: The First Four Years of Democracy under the Constitution of 1997, Address at King Prajadhipok’s Institute’s Seminar on the Temperature of Democracy and Election Behavior in Bangkok, Thailand (Dec. 23, 2005).
14. See Cornell University, Siam’s Political Future, The Monarchy In Transition, http://instruct1.cit.cornell.edu/courses/hist244/Batson9.html (last visited Jan. 25, 2007); cf . Kevin Hewison, Introduction: Power, Oppositions, and Democratisation, in POLITICAL CHANGE IN THAILAND: DEMOCRACY AND PARTICIPATION 1, 11–12 (Kevin Hewison ed., 1997).
15. Hewison, supra note 14, at 2.
16. See CONST. OF THE KINGDOM OF THAIL., B.E. 2540 (1997), especially, but by no means limited to, $ $ 26–65, 236–247.