MORAL DUTY AND LEGAL OBLIGATION IN THAI FOLKTALES

By Alexander Shytov

Application to law: The main legal problem which this story addresses is the conflict between moral duty and legal obligation. The five boys had a moral duty to find their genuine parents and at the same time they had legal obligation towards the parents who adopted them. The issue, however, is not restricted only to adoption, and the rights and duties between the adopters and the adopted. The issue concerns any area of law where a legal obligation comes into conflict with moral duty.

According to law, children who do not have identifiable parents can be adopted (with the consent of the court). Adoption involves a significant change in the status of the adopted. They receive the rights and acquire the duties of the legitimate children of the adopters.(4) The natural parents lose their parental powers from the time the children are adopted. In other words, the crows lost their parental powers at the moment the eggs were received by the adoptive parents: hen, dragon, turtle, lion and cow. The adopted children have a duty to maintain and care for their adoptive parents, that is the boys have a duty to maintain and look after them and not desert them. At the same time, law does not deny any rights and duties of the adopted children towards natural parents. Therefore, in cases such as the White Crows there is a possible conflict between duties towards natural parents and duties towards adopted parents. It is clear the law does not allow unilateral dissolution of adoption unless there was a gross violation of the duty by another party.(5) Law is silent on the issue of how to solve a conflict which may arise between the adopters on the one hand, who were faithfully cared for and raised their adopted children and expected reciprocity, and the desire of the adopted children to be reunited with their new found natural parents on the other hand. There would not be any conflict if the adoptive parents let the boys go free, or if the boys decide to live with and take care of their adoptive parents and at the same time wish to have a close relationship with their natural parents. But the problem may still arise since the relationships between the children and the parents cannot be measured in terms of material care and maintenance only. There are claims of fidelity, affection, spending time together and so forth.

The main implication of the folktale under consideration is that the rights to natural parents outweigh the legal duty to adoptive parents. In fact, the latter's rights have not even been mentioned. It is apparent that until the boys met each other they did not know the truth. Only when encountering each other and seeing each other's likeness did they realize that their adoptive parents were not their natural parents. They were moved spontaneously to go and search for their natural parents leaving the adopted parents behind. The rights of the latter and the duties towards them are not even questioned. They are overwhelmed by the discovery of the truth and the will to restore the broken ties with their Heavenly parents.

This implication, however, affects not only the relationship between the adopters and the adopted. It uncovers a deep conflict which may take place between moral duties, in which law can take the side of one of them, but still cannot outweigh the stronger moral duty. It is true that the duty to look after the adoptive parents is also a moral duty, and that duty is upheld by law. There is no legal duty to seek and find the natural parents in cases similar to the one in the White Crows. However, the story would undoubtedly uphold the rights of the natural parents over the rights of the adoptive parents if there were any conflict between them. If, let us assume, the white crows facing the conflict with the adoptive parents, decided to use their parental powers and the children obeyed them, such scenario would run against the parental powers of the adoptive parents. The law, if applied strictly, should take the side of the adoptive parents, providing that the formal requirements for the adoption have been fulfilled. That would go against the moral principles of the folktale.

The fact that the natural parents are the citizens of Heaven and the adoptive parents are mere animals emphasizes a deeper conflict than the one between the claims of parentage. It covers the conflict between the longing for a higher moral order with different moral rights and duties on the one hand, and the old moral order where rights and duties can be enforced by law. The conflict, for example, took place when Buddha forsook his wife and newborn baby in order to seek the truth. There was conflict between Jesus and his family, who tried to prevent his mission. But the conflict may go even further. In the last century it often took the form of refusal to go to the army and take part in a military conflict, because the objector believed that killing in war is also immoral. The cases of conscientious objection were the conflicts between the moral duties held by conscience and the legal duties Imposed by the society. At the present, in many countries the law grants the right to the conscientious objectors not to take part in military actions, but what no law can allow is the refusal of indirect support to the fighting government either through taxes or through alternative service.

The example of conscientious objection shows that law can try to find a compromise and, to a certain degree, tolerate a moral claim which runs against dominant social morality. But it can do that only to a certain degree. There can be certain moral ideas which the state and law would never tolerate, since law is imposed by society, and morality contains the beliefs held by conscience. Law enforces a dominant social morality, but it is clear that there can be several competing moralities in our world. If Buddha were to leave his family today, he would commit a breach of his parental and marital duties, which law would enforce against him. Buddha, however, was guided by different morality: the truth is more important than family duties: a conclusion which laws in any age have difficulty to agree with. The problem Yes in the generality of law. When the law requires that father must care and maintain his wife and children, it tries to force irresponsible fathers to carry out their moral duties. The law, of course, may stipulate that if the father Leaves his family for the search of truth or monastic vows, he is excused from fulfilling his family duties enforced by law. However, there will be the problem of how to distinguish those who sincerely seek the truth from irresponsible fathers, and whether any forsaking of family should be counted as an irresponsible act independently from the motives of the father.

Since Buddha forsook his family, and in the context of the Two Crows, it is possible to suggest that Thai folk wisdom would maintain that there can be excuses when someone does not carry out one's family duties, if that person is guided by higher moral principles such as moral perfection or finding

one's 'Heavenly' parents. It is true also that law can accommodate those moral claims. Normally, the law needs formal criteria which would allow distinguishing those who seek the truth or 'Heavenly' parents, and those who are merely irresponsible. The law can use such criteria as being ordained in an officially recognized temple. It can also require the formal consent of the family members which may cover hidden reluctance of the latter. At present, Thai temples ordain new monks only after the formal consent of the parents or spouse has been obtained. Whether or not law requires an official temple or formal consent of the affected persons to be the conditions for avoiding certain moral duties secured by law, the law is still missing the solution of the core of the problem: the conflict of different moral claims. What if a person was so committed to the search for truth that he forsook his family, and went to the forest alone to practice meditation day and night without being ordained in any official temple and without obtaining any consent? The law with its formal requirements of being in an official temple and having obtained the consent would likely go against such an Individual. The problem which no law can solve in this given example is that the search for the truth as a reason for not carrying out one's family duties satisfactorily cannot have one particular form of expression which law can take for a criterion. The problem can be solved only if judges who adjudicate family cases receive a broad discretion to pass a judgement on those who unconditionally follow the example of Buddha, or the children of the white crows. In order to do that, there must be assurance that the judges are able to distinguish the person who seeks for truth from the person who merely evades his family responsibilities. How can a judge do that if he has never experienced the same call for the search of the truth? It would be naive to expect that every judge has a similar calling. It is possible, however, for a judge who is able and willing to sympathize with other people, to understand partly the motives of those people. Therefore, if law can solve the problem of reconciling different moral duties and their claim for legal recognition, it can be done only through a sympathetic judge who is able to establish true motives of action, rather than through establishing any formal requirements.

It is important to emphasize once again that the conflict between moral duties and their claim for legal recognition cannot be restricted to family relationships only. The conflict can take place in any part of social life. Therefore, the conclusion that formal requirements of law cannot be absolutely effective in solving the problem of conflicting moral duties, and the need for a sympathetic judge able to establish deep moral motivation of the individual, has its significance for any branch of law.

Part  3

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