Thailand Law Journal 2010 Spring Issue 1 Volume 13

Thailand's experience exhibits a similarly paradoxical pattern. Since the mid-twentieth century, while Thailand's population has tripled, the number of lawyers in Thailand has increased more than twenty-five fold. In 1960, fewer than 2000 lawyers existed in a population of 23 million; in 2008, there are more than 54,000 private lawyers in a population of 60 million, while thousands more work for the government as judges, prosecutors, or legal advisors. [FN27] No doubt Thailand's booming economy has contributed to the rapidly increasing number of lawyers, raising law from among the also-rans of university education to one of the most popular fields of study. [FN28] Over roughly the same period, Thailand has experienced nineteen military coups, the latest in 2006, has had eighteen constitutions, and is still widely criticized for recent human rights violations. [FN29]

In contrast to earlier periods of global interconnection that were accelerated by revolutions in transportation (sixteenth through nineteenth centuries) and global finance (post-World War II), contemporary "third wave" globalization is distinctively about transnational influence on governance, through exporting institutions, organization, and technology. [FN30] The current wave of global interconnection has opened the door as never before to mutual influence. [FN31] Cultural exports, in the form of rights, political institutions, or technology of production, have taken shape on the ground in societies such as Thailand. In turn, developing countries contribute distinctive views to international discourse on human rights, "Asian values," and rule of law. [FN32] The rule of law and liberal legalism are important exports from the Global North, [FN33] promoted by dominant world financial and political powers to encourage stability, but also frequently embraced by domestic advocates who believe that rights will support equality, accountability, and social welfare within their own societies. [FN34]

Widespread advocacy for the rule of law begins with the most powerful international actors, and it is often prescriptive, suggesting that adoption of Western models for economic and social regulations, individual rights, and legal process are key stepping stones to prosperity and democracy. Many of the most important contemporary advocates for rule of law reforms are powerful international economic and political actors who promote democracy and the rule of law to stabilize emerging societies for the benefit of the global economy. [FN35] But advocates with other goals--for example, nongovernmental organizations (NGOs) that promote human rights, United Nations agencies, and religious institutions--have also become highly influential. [FN36] While international agencies such as the World Bank, International Monetary Fund (IMF), and the U.S. Department of State have promoted rule of law from the top down--through structural adjustment, diplomatic influence, and technical expertise resulting in statutory and constitutional reform--more progressive, humanitarian NGOs and organizations have attempted to influence change at the grassroots level by linking ideas, technical skills, and financial resources to local participation in rights advocacy. [FN37]

Professors Thomas Risse and Kathryn Sikkink proposed a "spiral model" to explain a pattern that they perceived created successful movements for enforcement of international rights regimes through a combination of local advocacy and international pressure. [FN38] According to their theory, partnerships between an international and a local advocacy group ensure that rights advocacy has validity in the local "vernacular," [FN39] while pressure from international advocates, phased in over the lifetime of a local movement, creates an ascending spiral of influence pressuring a recalcitrant government toward the implementation of a particular regime of rights. The key to the "spiral model" is the presence of Transnational Advocacy Networks (TANS) which link local advocates with their counterparts in International Nongovernmental Organizations (INGOs), international agencies, and foreign countries in a position to deploy a hegemonic discourse of rights in ways the government of the society may be less willing to ignore. [FN40]

Professor Daniel Lev has observed that even in Europe there were "long histories that produced distinctive local institutions and legal habits." [FN41] Contrary to the views of American and European scholars who seem to consider an idealized version of "Western" law a standard by which to judge the evolution of other legal systems, he maintained that there was nothing natural or universal about the Continental "rechtsstaat" or the English "rule of law." These systems of legal thought have been promoted as universal ideals, but they are rationalizations for systems of law that favored newly emerging political or economic interests. Their adoption by other societies with different histories is not inevitable and where different dominant interests promote development. Lev concludes that many new states now face problems similar to those faced a century or more ago in Europe and that influential groups have embraced a familiar solution, namely to "establish some controls over powerful governments by subjecting them to more or less autonomous legal process." [FN42] Nevertheless, he cautions, in new states, pressures toward constitutionalism and more effective legal process have advantages and suffer constraints quite different from those of old Europe .... [I]deas, in Asia as in Europe or anywhere else, take hold only when they make sense domestically and are adapted to domestic purposes. [FN43]

[FN20]. See William P. Alford, Of Lawyers Lost and Found: Searching for Legal Professionalism in the People's Republic of China, in RAISING THE BAR: THE EMERGING LEGAL PROFESSION IN EAST ASIA 287, 290 (William P. Alford ed., 2007) (discussing the rising number of lawyers in China); Daniel S. Lev, A Tale of Two Legal Professions: Lawyers and State in Malaysia and Indonesia, in RAISING THE BAR, supra, at 383, 387, 400 (discussing the rising numbers of lawyers in Malaysia and Indonesia).

[FN21]. See William P. Alford, Introduction, in RAISING THE BAR, supra note 20, at 1, 7. Scholars debate the long run, some anticipating convergence, others suggesting that the historical path of the legal profession in many developing societies will be unique. Id.

[FN22]. See id. at 6-9.

[FN23]. Randall Peerenboom, Assoc. Fellow, Oxford Univ. Ctr. for Socio-Legal Studies, Speech at the Annual Meeting of the Law and Society Association (July 2007).

[FN24]. Elizabeth Heger Boyle & John W. Meyer, Modern Law as a Secularized and Global Model: Implications for the Sociology of Law, in GLOBAL PRESCRIPTIONS: THE PRODUCTION, EXPORTATION, AND IMPORTATION OF A NEW LEGAL ORTHODOXY (Yves Dezalay & Bryant G. Garth eds., 2002).

[FN25]. DANIEL S. LEV, Introduction, in LEGAL EVOLUTION AND POLITICAL AUTHORITY IN INDONESIA: SELECTED ESSAYS 3, 3 (2000).

[FN26]. See, e.g., Alford, supra note 21, at 9-17 (summarizing the findings of studies of the legal profession in East Asia included in the volume).

[FN27]. Lawyers at the end of the 1960s are enumerated in NAT'L STATISTICAL OFFICE, OFFICE OF THE PRIME MINISTER, 28 STATISTICAL YEARBOOK THAILAND, 1967- 1969, at 159 [hereinafter STATISTICAL YEARBOOK]. For the number of lawyers registered by the Lawyers Council of Thailand as of 2007, see Lawyers Council of Thailand, http://www.nichibenren.or.jp/en/directory/data/E07-Lawyers_ Council_of_Thailand.pdf.

[FN28]. See MINISTRY OF EDUC., ANNUAL REPORT OF THE MINISTRY OF EDUCATION OF THAILAND (2003) [hereinafter MOE ANNUAL REPORT]. It is also evidenced by the rapid increase in the number of state and private law schools. See infra note 97.

[FN29]. See Frank Munger, Constitutional Reform, Legal Consciousness, and Citizen Participation in Thailand, 40 CORNELL INT'L L.J. 455 (2007); David Streckfuss & Mark Templeton, Human Rights and Political Reform in Thailand, in REFORMING THAI POLITICS 73, 86 (Duncan McCargo ed., 2002).

[FN30]. Ammar Siamwalla, Globalisation and Its Governance in Historical Perspective, in SOCIAL CHALLENGES FOR THE MEKONG REGION 13, 34-35 (Mingsan Kaosa-ard et al. eds., 2003). I am calling Siamwalla's second phase of the Second Globalisation a "third" wave because of its distinctive emphasis on political and economic governance, rather than finance, but otherwise I accept his characterizations of relevant changes and their effects.

[FN31]. Lauren Benton has shown that mutual influence is always present even in relations of formally unequal global influence, such as conquest and colonization. See LAUREN BENTON, LAW AND COLONIAL CULTURES: LEGAL REGIMES IN WORLD HISTORY 1400-1900 (2002).

[FN32]. 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) (explaining Asian conceptions of rule of law and providing an empirical foundation to the debate about "Asian values").

[FN33]. "Global North" is a term used widely to refer to the political, economic, and cultural perspectives of the economically developed societies, predominantly, but not exclusively, in North America and Europe. See, e.g., Boaventura de Sousa Santos, Three Metaphors for a New Conception of Law: The Frontier, the Baroque, and the South, 29 LAW & SOC'Y REV. 569, 579 (1995) (exploring the potential significance of the concept of Global North and Global South).

[FN34]. See id. at 581; Thomas Carothers, The Rule-of-Law Revival, in PROMOTING THE RULE OF LAW ABROAD: IN SEARCH OF KNOWLEDGE 3, 6-11 (Thomas Carothers ed., 2006).

[FN35]. See Alvaro Santos, The World Bank's Uses of the "Rule of Law" Promise in Economic Development, in THE NEW LAW AND ECONOMIC DEVELOPMENT: A CRITICAL APPRAISAL 253 (David M. Trubek & Alvaro Santos eds., 2006); Frank Upham, Mythmaking in the Rule-of-Law Orthodoxy, in PROMOTING THE RULE OF LAW ABROAD, supra note 34, at 75. See generally Gary R. Hess, Waging the Cold War in the Third World: The Foundations and the Challenges of Development, in CHARITY, PHILANTHROPY, AND CIVILITY IN AMERICAN HISTORY (Lawrence J. Friedman & Mark D. McGarvie eds., 2003).

[FN36]. See MARGARET E. KECK & KATHRYN SIKKINK, ACTIVISTS BEYOND BORDERS: ADVOCACY NETWORKS IN INTERNATIONAL POLITICS 6 (1998); Stephen Ellmann, Cause Lawyering in the Third World, in CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES, supra note 1, at 349; Jessica T. Mathews, Foreword to PROMOTING THE RULE OF LAW ABROAD: IN SEARCH OF KNOWLEDGE, supra note 34, at vii.

[FN37]. See KECK & SIKKINK, supra note 36.

[FN38]. Thomas Risse & Kathryn Sikkink, The Socialization of International Human Rights Norms into Domestic Practices: Introduction, in THE POWER OF HUMAN RIGHTS: INTERNATIONAL NORMS AND DOMESTIC CHANGE (Thomas Risse, Stephen C. Ropp & Kathryn Sikknik eds., 1999).

[FN39]. MERRY, supra note 5, at 1 (describing meaningful characterization of human rights concepts in local contexts as translation into the "vernacular").

[FN40]. TANs are networks of advocates for particular policies or rights that are "distinguishable largely by the centrality of principled ideas or values." They offer a variety of resources, such as legitimacy for social justice claims (and rights) or media and political access for progressive advocacy, as well as material and technical resources. Social movements may be drawn to TANs and choose lawyers associated with them. KECK & SIKKINK, supra note 36, at 1.

[FN41]. LEV, supra note 25, at 4.

[FN42]. Id. at 6.

[FN43]. Id.

Globalization, investing in law, and the careers of lawyers for social Causes: taking on rights in Thailand. Originally appeared in Volume 53 of the New York Law School Law Review (2009) .