Thai Folktale and Legal Reasoning

ABUSE OF JUDICIAL POWERS IN THAI FOLKTALES*

By Alexander Shytov**

INTRODUCTION

Law is not only a body of rules which determine the rights and responsibilities of its subjects. Law is the way to bring harmony in social relationships. Every legal right and every legal responsibility is a reflection of a certain social relationship. In public law the relationship comes into being through the acts of a sovereign state or its representatives. In private law the relationships normally come into being through the free will of its subjects. Law not only determines the conditions and the content of legal rights and responsibilities, it also provides a mechanism for enforcement of such rights and responsibilities. The key element of that mechanism is court or judges. The need for enforcement normally appears when one party to the relationship is claimed not to be honoring the rights or responsibilities of another party. Dispute can take place in any relationship, and court is the primary instrument which assists in specific determination of the rights and responsibilities in the dispute and then directs their enforcement.

Therefore, law cannot function without court. Law without adjudication is like a vehicle without an engine. It may have all external characteristics, but it cannot move itself. Court, however, is not an impersonal body or computer. It consists of people. This is exactly where the morality of those people who move the machine of adjudication becomes vital for the whole system of law, and indeed for the whole livelihood of the society. A morally good judge ensures that the law functions properly and according to its purpose, which brings peace and harmony into social relationships. A morally bad judge uses law for his own selfish ambitions and promotion. When he does his work, his thoughts are not about justice but about himself. A selfish judge is a curse for society and its law, because such a judge turns a very powerful instrument of justice against justice. He abuses law through securing what is unfair and unjust in human relationships.

Thai folktales contain a number of stories about such judges. They also contain a positive ideal of a judge who is unselfish and impartial. In this article, two folktales are offered for consideration, which portray an evil judge, the one who is greedy and selfish.

WONDROUS JAR (1)

Content: There was a very poor man, but he was very honest, hard working and with high moral character. He had to work for a rich man. Once while ploughing the field of his employer he found a beautiful jar and took it home. After a while, he accidentally dropped a small coin into the jar, but when he tried to take it out the money began to multiply, making him exceedingly rich. He was very generous and helped others. The employer heard the news and brought legal action claiming the rights of property of the jar, since it was found on his land. A judge in the case wanted to misappropriate the jar. He seized it and took the object to his own house. The father of the judge decided not to waste time and tried to put as much gold as he had into the jar. The gold became so heavy that the father could not take it out and eventually he himself fell into the jar, crying for help. The judge ran to the jar and wanted to pull the father out, but the father multiplied himself. The judge was pulling one father after another, and there was no end to them. In the end the judge gave up leaving the genuine father in the jar. The story concludes: "And that was sin."

Interpretation: There is a conflict between a poor but honest person, and a rich but dishonest and greedy society. The story mentions that many people wanted to possess the jar. But it was a judge using his official position who misappropriated the jar and tried to use it for his own benefit. The story indicates a complete mistrust into an official judicial system. The judge is portrayed as greedy and selfish and so is his father. The greediness of the judge, his father, and the rich man with all their wealth and high status is opposed to the high moral character of a poor person. The poor man was rewarded for his high moral character, honesty and hard work by finding the wondrous jar. When he became rich, he did not keep wealth for himself, but helped other people. On the contrary, the rich man - the employer of the poor man was not content with the wealth which he already had. He wanted more and more. He knew how to assert his rights on the property, but his claims were overtaken by the one who should represent justice. In his attempt to gain more wealth, the rich person achieved nothing but waste of his strength, time and money in his legal battle to possess the wondrous jar. His greediness is opposed to the generosity of the pour man who used the acquired wealth to help others.

The main moral lesson which the story conveys is the idea that a greedy person will not benefit from his wealth or position; his greed will cause him to sin. The judge left his father in the jar, pulling out endless numbers of the images of his greedy father. There is some symbolism in the multiplication of a greedy person who fell into the jar - the source of wealth. The greedy father produced many images of his own, but he himself was left to die in the jar together with the wealth, which was so vast that it could not be taken out. Greed is like a contagious disease, it spreads quickly and it kills.

Thus, one can draw several moral principles from this story. The first one is that one should guard himself against greed which leads to sin. This principle of Thai folk wisdom finds its resemblance in other ethical and religious traditions. For example, Jesus taught his followers: "Watch out! Be on your guard against all kinds of greed; a man's life does not consist in the abundance of his possessions."(2) The second principle maintains that honesty, hard work and high morals are better than wealth and material prosperity. The third principle is that material wealth should be used not for selfish goals but for helping those who are in need.

Application to law: The moral content of the story can be applied to law in two aspects. The first is about the fairness of judicial process. The second is how much the sin of greediness should play a role in determining the content of legal rights and responsibilities in a particular relationship.

The implication of the story for judicial process is that judges must not be greedy and must not have any personal interest in the issue they adjudicate. It is true that law has a sufficient number of rules which try to exclude a judge, who has any personal interest in outcome of the case, from taking part in making decisions. Having personal interest in the outcome of a case is in law called bias. In legal literature there are two major conceptions of bias. The narrow view of bias covers only the judges who decide the case in a dishonourable fashion, knowingly by reason of their partiality or dislike for one litigant or his cause. Apparently, the judge in the folktale had his twin in English law. The eighteenth-century English judge, Mr. Justice Buller "was said always to hang for sheep-stealing, avowing as a reason that he had several sheep stolen from his own flock." (3)Like the judge in the folktale, Judge Buller was thinking of his own personal interests, and so he would interpret law and determine the punishment according to his personal interest. The narrow conception of bias relates basically to the judges who have some personal or institutional interest in the outcome of the legal process. (4)The personal interest is reduced primarily to either pecuniary interest, family relationship, or business connections. Therefore, the main attention has been given as to how to exclude the judges who have personal or institutional interests from taking a decision, exactly as in the meaning of the folktale.

Part 2

*Originally Published in Thai Folktales and Law, ACTSCO. Ltd, Chang Mai, Thailand.
** The author is a law lecturer at School of Law, Faculty of Social Sciences, Chiang Mai University, Chiang Mai 50200 Thailand.
(1) 'Ohngwiseht' in Nithaanphynbaan.-Ed. By Wichian Getpratum.- Bangkok Samnakphimpattanaasygsaa,200.-P.129.
(2) Luke 12:15.
(3)Pannick D. Judges. - Oxford University Press, 1987. - P. 39.
(4)See some recent English cases where the narrow concept of bias is prominent: R. v. Bow Stree Metropolitan Stipendiary Magistrate and Others. - ex parte Pinochet Ugarte (No 2). - (1999] 1 All ER. 577; Lotahail (UK) Ltd. v. Bayfield Properties Ltd. [2000] 1 All E. R. 65.