THAI FOLKTALE AND LEGAL REASONING

By Alexander Shytov

 

          If all those theories have to be applied to the case of the stupid men it will be clear that the latter could not be expected to pay any attention to the principles formulated by those prominent legal scholars. What, however, was expected from them is common sense. Thai folktales can be conceived as the an embodiment of common sense which can be useful for learning, not only to any stupid man, but also for anyone lacking knowledge and experience lawyer. Common sense is important in law, and that importance is acknowledged even by Neil MacCormick whose theory is, perhaps, the least open to the acknowledgement of the superiority of moral values in law among those theories mentioned above.(15) The best advocate of the importance of common sense in law was, in my opinion, a prominent English judge, Lord Denning, who often appealed to common sense when deciding hard cases.

          Common sense does not need to be expressly appealed to by judges or administrators when applyng a law, unless there is a lack of legal rules which govern a particular legal relationship, and application of all other rules would obviously contradict common sense. In most cases of the application of law, common sense underlies legal reasoning. Thus, law enforcement officers need a developed common sense in order not to make stupid decisions similar to those described in the folktale. Common sense is a complex concept. It relates to such virtues as wisdom, knowledge, and understanding. It also requires experience of life. In law the concept of common sense relates closely to the concept of reasonable man which found its acceptance in both Common law and Civil law. In Thailand, for example, the concept of reasonable man (winnoochon) is presented in the law on the unfair contractual terms and conditions.(16) In Common law the concept of reasonable man has been developed in an objective test to measure one's liability in negligence cases.(17) This test allows judges to use common sense in evaluating one's liability.

          Thus, the importance of common sense for application of law, and indeed, for its creation and its abrogation, does not need many words to justify it. What is, however, important, is to point out the standards of common sense. It Is difficult to set such standards by law, that Is by abstract legal rules, because common sense is expressed in individual cases. It operates on a different level than legal rules do. In this context, Thai folktales as any other folktales can be seen as an embodiment of common sense, and as such should be studied by every one involved in creation, application and abrogation of law. Folktales are not the only source of the knowledge of common sense. To a large degree it comes from individual experience. But folktales are the collection of human experience of common sense accumulated through the ages, and which are shared by the whole of mankind.

          The story of Stupid Men emphasizes the importance of common sense as the other Thai folktales do. What is remarkable for this folktale is the presentation of the whole panorama of stupid actions, whose classification has been attempted in the interpretation section of this sub-chapter. It is obvious that every decision-maker can learn and can be warned not to follow the ways of the stupid men when applying legal rules or principles. Each of the types of stupid actions briefly outlined above do happen in real application of law. An administrator may go to his boss always asking for new directives in handling a new legal case, without any ability to use his common sense or grasping a general rule applicable to such cases. A judge may apply law to a certain fact foreseen In that law without looking at all other related facts, missing by that the intention of the lawgiver and extending the application of the law to completely different situations. It is a common mistake to misinterpret the original facts giving them a wrong legal libel. Finally, many decisions are made on all levels of law without taking into account real consequences of those decisions.

          Apart from lacking practical knowledge, inability to make or apply general rules, the stupid men had another fault: inability to take inner perspective and feelings of other people into account, whether it is of the woman giving them a job, of the people in the jubilant procession to the temple, or of the spouses quarreling with each other. Many legal decisions are made without taking into account real feelings of those who are affected by the decisions, and at the same time many great legal decisions have been made in changing law and legal practices when the decision-makers did consider the inner perspective of those who were affected by the outcome of the legal process. The history of law is still waiting for its historians to examine and write the place of compassion in the life of law.

         The issues of compassion have already been considered in the previous chapters. It is worthy to note here only that sound legal reasoning must be based on compassion and understanding of the feelings and emotions of other people affected by the decision. It is an interesting fact that in the story, the wise people when facing the stupidity responded with compassion. The death penalty was not enforced, and begging for the 'magic' goad was answered with kindness. Even though the stupid men did not learn any lessons from those acts of compassion, it underlines the difference between the wise and the stupid. A wise lawyer learns to be a compassionate lawyer.

CONCLUSION

          Compassion and common sense are important elements of sound legal reasoning. The danger for lawyers lies in being absorbed with legal forms so that the substance of legal rules as the instruments of justice is buried under the pile of legal formalism. A compassionate lawyer breaks the chains of legal formalism. Having compassion is not enough. Application of legal rules requires wisdom, experience and knowledge which can be summed up in the idea of common sense. The latter is a special ability to apply right rules to the right circumstances. Thai folktales are an embodiment of common sense and should be used by lawyers in acquiring and enriching their common sense.

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