Thai Folktale and Legal Reasoning

THAI FOLKTALE AND LEGAL REASONING*

By Alexander Shytov**

INTRODUCTION(1)

It is common for lawyers to restrict the concept of legal reasoning to the process of argumentation as a process of justification of legal judgements. (2)Such definitions normally exclude the question of the morality of those judgements and miss the deeper layers of legal reasoning. Legal reasoning can hardly be separated from moral reasoning.(3) This unity of moral and legal reasoning comes from the nature of legal reasoning defined as the process of arriving at legal decisions through the evaluation of facts and adaptation of legal rules and principles to those facts. It is clear that moral reasoning is an integral part of any legal decisions, because any legal reasoning is based on the moral standards of what constitutes the duties of a proper evaluation of fact and proper application of legal rules. Morality is about rightness and goodness. Since the task of legal reasoning is to make a right and a good legal decision, the whole process of such reasoning is inherently moral.
There are several aspects of importance in moral standards for legal reasoning. In this relation, almost every topic in Thai folktales has a direct or indirect relation to legal reasoning. In this article, the Thai folktales chosen address the problems of legal formalism and mistakes in evaluation of facts and adaptation of rules to those facts. Legal formalism is a process of arriving at a decision only on the basis of consideration of formal characteristics without serious attention to substance of the problem at hand. The first folk tale "Rolling Stone - Marrying Woman" presents legal formalism very clearly. The second folk tale "Stupid Men" is full of examples of the wrong handling of general rules in particular situations.

ROLLING STONE - MARRYING WOMAN(4)

Content: The story is about three cities - kingdoms. Two kingdoms had a prince heir each. The third kingdom had only a princess named Saroisaddaa, but no prince. Both princes wanted to marry the princess who loved one of them whose name was Praasaaththong. Another prince whose name was Jitgasaem had a stronger army. The father of the princess was afraid of the war with the kingdom of Jitgasaem, if he were to give his daughter to Praasaaththong. he was advised by his advisors to arrange a competition between the two princes. The committee of arbitrators was appointed consisting of representatives from all the cities, and they were to ensure that the rules were observed. The one who won would have the right to marry the princess. The princes had to roll huge stones, each from different directions, to the centre of the city of the princess. The first who arrivedshould strike the gong as a sign of victory, and the princess should be given to him. Praasaaththong arrived first to the great joy of the princess. The whole city started to celebrate the victory by eating and drinking. But the winner forgot to strike the gong. When Jitgasaem arrived, a member of the committee from his city advised him to strike the gong without delay. To the great distress of the celebrating crowd it was clear that according to the rules Jitgasaem won. After awhile, Jitgasaem returned to the city of the princess with a huge army, and the father of the city had had no choice but to give his daughter to the official winner. The princess grieved and refused to lie together with Jitgasaem. Jitgasaem decided to send her to a mountain which was later called Khaolormnaang, translated as 'the mountain of fondling a woman'. There were many flowers, and many people were sent to persuade her to yield to Jitgasaem. The princess continued to grieve, neither accepting Jitgasaem nor eating any food. In the end Jitgasaem came to the mountain himself riding an elephant. At that time an angel of sexual love pierced the heart of the princess. Inflamed with passion she climbed the elephant and gave herself to her husband. After that they had a happy family life until they died.

Interpretation: The story told by a man indicates a superiority of a persistent and strong man over the attachments of a woman. If told by a woman the story would likely have a different outcome of the contest between the two princes. There are several moral principles which can be deduced from the narrative. The first principle is watchfulness. Praasaaththong and his party were celebrating victory too early. Having accomplished the substantive part of the competition, they forgot the formal part which was vital. On the other hand, the other party was watchful and noticed the mistake of the first party. The counsel for Jitgasaem did not panic, but used every opportunity to gain victory even under the circumstances of apparent defeat.

The related moral principle is that of perseverance. In the face of defeat, Jitgasaem did not give up, nor did he give up when he was rejected by his wife. He knew the opposition to his marriage and brought the whole army with him, being prepared to fight for his right. It is interesting that the second competitor did not make any further efforts to question the victory of Jitgasaem. This readiness to fight for one's right is undoubtedly a positive element of the folktale.

The storyteller approves the treatment of the princess by Jitgasaem. One, however, can make some reservations on the moral content of this story. . If one has to take the perspective of the princess, it is a sad story. She was not free to give her love to the one whom she genuinely loved. The ultimate reason she was given to Jitgasaem, was to avoid war with the aggressive prince who wanted to marry at ail costs. The public interests of the kingdom of the princess required the sacrifice of her freedom. Stability and peace of the public are superior to the personal choice of the individual. This is indeed the truth for many societies and laws except perhaps, the modern Western law based on the superiority of human rights. Taking into account the importance of peace, it is possible to excuse the father of the princess for yielding to the demands of Jitgasaem. But is there any moral justification for Jitgasaem who denied to the princess any right to choose? His desire was to possess the woman at any cost, although it is true that he did not do her any physical violence. The story provides a final justification for the acts of Jitgasaem: they lived together happily until their death. In other words, the story provides a consequentialist justification: a good end justifies any means.

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)The author is a law lecturer at School of Law, Faculty of Social Sciences, Chiang Mai University, Chiang Mai 50200 Thailand. He completed his PhD law research both in Moscow (Russia) and in Glasgow (the UK). For comments he can be contacted at: shytov@yahoo.com
(2)McCormick N. Legal Reasoning and Legal Theory. -Oxford: Clarendon Press, 1994. - P. 19.
(3)See: Fuller L. The Morality of Law. - Yale University Press, 1969.
(4)Glinghinchingnaang' in: Nithaanphynbaan. - Ed. by Wichan Getpratum - Bangkok: Samnakphimpattanaasygsaa, 2000. - P. 63.