Thai Folktale and Legal Reasoning

THAI FOLKTALE AND LEGAL REASONING

By Alexander Shytov

The main conflict between the freedom of the princess and the will of Jitgasaem to marry her can be expressed as a conflict of two types of ethics: deontological ethics and consequentialist ethics.(4) Deontological ethics emphasizes the importance of the goodness of moral rules or values in themselves, while consequentialist ethics evaluates the goodness of rules depending on their ultimate result. For example, if a lie eventually brings more happiness to everyone, then following the rule of not lying is morally inappropriate. Deontological ethics would disagree maintaining that the rule of not lying is valid always, independent of the final outcome of following the rule. The folktale under consideration presents a consequentialist argument. Since the princess had a happy life afterwards, the denial of her freedom to love is morally justifiable. A deontological ethic would object to that, by stressing that the denial of freedom to love is bad under any circumstance.

Deontological and consequentialist types of ethics are not the only moral theories presented in academic writings and found in real life. In my recent book, a moral theory of impartial sympathy has been developed as an alternative to both deontological and consequentialist types of moral and legal reasoning.(5)The main idea of the impartial sympathy approach is that when a person has to pass a moral (and legal) judgement, instead of following a moral (or legal) rule strictly, which is advocated by deontological reasoning, and instead of weighing the general consequences on society which is done by consequentialist reasoning, the person has to take the perspective of the individuals involved. Sympathy judgement does not deny the importance of rules or consequences. Instead, it stresses arriving at a moral and legal decision through a serious consideration of the interests and personalities of the people affected by the decision. The sympathy approach requires a decision maker to imagine himself at the place of the other people. The case of Jitgasaem can be a good example.

The decision of Jitgasaem to marry the princess could be guided by selfish interests. It might be that the only purpose of his action was to possess the woman in a similar way as one possesses a thing, or marriage could be a mere instrument to inherit another kingdom. If that were the case, there is no moral justification for the action of marrying. The story, however, does not admit that. As has been pointed already, there was a moral reason to make the princess and Jitgasaem himself happy in the end. According to the consequentialist reasoning (apparent in the story of Jitgasaem), the final outcome - the happiness of both - provides a moral justification for his forcing the princess to marry him. If Jitgasaem were to apply deontological reasoning, which maintains that forcing a woman to marry is a violation of her freedom and therefore immoral, Jitgasaem would refuse to marry even though he might win, merely because he follows the principle which says that forcing woman to marry is not a good thing. The fact that in the end the princess consented to the sexual relationship with Jitgasaem does not change the judgement. The passion aroused in the princess was not free. That passion was not a genuine love.

If Jitgasaem were to pass a sympathy judgement he would have to put himself imaginatively in the place of the princess, and try to think how he would feel if he were the princess. It is likely that sympathy towards the princess would move Jitgasaem to withdraw all his claims for marriage. Thus, moral reasoning based on sympathy denounces the act of Jitgasaem to force
the princess to marry him, because it follows the Golden Rule: do to others what you would have them do to your. Sympathy judgement, however, is more complicated than taking into account the feelings and thoughts of a person affected by the decision. Sympathy judgement does not automatically imply that as soon as Jitgasaem found out the real feelings and aspirations of the princess he would withdraw his claims. If that were the case it would be proper to call it an empathy judgement. Impartial sympathy judgement goes beyond that. It does not require a decision maker to give up his moral reasoning. Instead it invites him to enter into dialogue with the inner world of another person, and be prepared to challenge his own moral presumptions.

Impartial sympathy judgement implies several things: firstly, another person must be treated as equal, and his thoughts and feelings must be treated equally too; secondly, sympathy judgement does not reject moral reasons, either deontological or consequentialist, but it examines them in the circumstances of the case; and finally, impartial sympathy judgement implies
mercy and compassion. It does not always provide clear answers to all problems, but it does provide the way to solve those problems: the way of unselfish love and compassion. Considering the circumstances of the case as presented in the folktale, it appears that if Jitgasaem were to follow sympathy judgement he would give the princess complete freedom to choose, particularly in the situation where his victory in the contest was not complete.

Another reservation which I would like to offer is about the idea that form prevails over substance. In the contest It was agreed that the one who rolls the stone first and strikes the gong would be considered the winner. Praasaaththong arrived first, but the gong was struck by Jitgasaem. The real winner should be the one who displayed more strength or skill in the contest, The story, however, gives preference to the one who struck the gong first. None of the competitors complied completely with the conditions of the contest, and in this case the formal expression of the victory prevailed over the real winner. Is the award of the victory to Jitgasaem just? The story presents a clear conflict between formal justice (compliance with the form of the agreement) and substantive justice or equity (display of greater strength in the contest). The gong was a symbolic thing. It could be argued that by the original intent of the organizers of the context it did not have much importance. It might be arranged merely to inform the other competitor of his failure. The real meaning of the contest was to give the princess to the strongest one, that is to the real winner, not the one who struck the gong.

Application to law., The folk-teller of this story would never suspect that he represented a common mind-set of many lawyers, administrators and judges. Formalism and consequentialism are two typical characteristics of legal reasoning of all times and in all places including Thailand. A lawyer with a formalist mind-set is not interested in what is going on inside. His interest is reduced to external appearances. He judges by appearance, exactly as in the contest in the folktale. If a person struck the gong he must be the winner. All other facts are irrelevant. Formalism in law can be found everywhere: in application of administrative rules, in interpretation of contracts and statutes, in deciding on whether a particular act is criminal or not. It is, nevertheless, not shared by every lawyer. In fact, the most famous and influential judges in the history of law were the ones who could brake the chains of legal formalism. In the last century, Lord Denning, an English judge, was one of them, and apparently not the most loved one by the army of English lawyers. In a number of cases, Lord Denning refused to follow the letter of the law, application of which would be unjust, and instead he decided the cases according to substantive justice.(6)

Consequentialism is another characteristic of lawyers around the world. It is common when the issues of law touch very sensitive political issues. There are plenty of cases where judges of supreme or constitutional courts made their decisions based on analysis of general consequences on politics, society and law. A very famous case in Thai Constitutional Court was the case in 2001 on whether the Prime Minister of Thailand should be barred from political activities since he had failed to declare his real wealth as was required by law. The judges by narrow majority decided that the Prime Minister should not be barred. For any Thai expert of constitutional law it was clear that the main reasons underlying the decision were political, that is consequentialist. The consequentialist reasons, however, are more complex and common than the issues of high politics. The works of the prominent American legal scholar and judge, Posner, displayed well the importance of such reasons for judges In deciding even trivial cases.(7)

The folktale, as has been mentioned above, does not condemn formalism and consequentialism. There is no criticism of those types of moral reasoning. But the story itself is striking by showing the lack of any sensitivity and compassion towards the princess on the side of the main character of the story: Jitgasaem. Whether it was Intended by the storyteller or not, the types of reasoning based on formalism and consequentialim are challenged through portraying immense suffering and affliction of those whose love was unfulfilled. There is also a temptation to yield to the power of legal forms, or to external pressure (like the army of Jitgasaem brought to claim the princess after the contest), or mere hopes of happiness in the future, than to struggle against these strong currents. But the existential question remains: is the way of compassion and respect for other people a more noble path for a lawyer?

Part 3

(4) Scheffler S. Conseauentialism and Its Critics. - Oxford University Press, 1988, Parfit D. Reasons and Persons. - Oxford: Clarendon Press, 1984. A Companion to Ethics. - Ed. By P. Singer. - Oxford: Blackwell, 1991. Dancy J. Moral Reasons.- Oxford: Blackwell, 1993. Fried C. Right and Wrong. - Cambridge, MA: Harvard University Press, 1978.
(5) Shytov A.N. Conscience and Love in Making Judicial Decisions. - Kluwer, 2001.
(6)see for example: a maritime English law case Oldendorff v. Tradax Export [ 1971] A.C. 479. The case was eventually decided by overruling the previous law according to which a ship should be considered as arrived when at the berth. In the present case the ship arrived in port but was not allowed to arrive at the berth wasting the money of owners. Lord Denning invoked common sense rejecting the letter of law.
(7) Posner R. The Problems of Jurisprudence. - Harvard University Press, 1990; Posner R. Economic Analysis of Law. -Toronto: Little, Brown and Company, 1992.