Tort, Custom, and Karma: Globalization and Legal Consciousness in Thailand, David M. Engel and Jaruwan Engel
In Chapter 1, we read an extract of the Engels' book discussing the relationship between state injury law and Buddhist practices in northern Thailand, and, in Chapter 4, we considered David Engel's article on the legal consciousness of northern Thai villagers.
Both the book and the article are based on the Engels' research spanning the 197°s through to the early 2°°°s. Their longterm fieldwork and multi-method design enabled them to connect macro changes across time to the experiences of individual injury victims at the micro level.Our fieldwork had two major components: (ι) extended ethnographic interviews with more than a hundred individuals in Chiangmai, Thailand, thirty- five of whom had been hospitalized for treatment of serious injuries; and (2) a survey of personal injury and other tort cases litigated in the local trial court over a thirty-five-year period. [...]
The design of the study reflects a pyramid model of litigation and dispute processing that is familiar to and widely used by sociolegal scholars. As applied to the personal injury field, the pyramid is said to rest on a broad base consisting of all the harms that might potentially be perceived as wrongful and, in some cases, as having legal significance. The middle layers of the injury pyramid involve unilateral or bilateral claims and negotiations, intervention by unofficial third party intermediaries or lawyers, and other extrajudicial settlement procedures. The tip of the pyramid involves tort cases that are actually litigated, adjudicated, and - even more rarely - appealed. Our study of injuries in Thailand concentrates on two layers of the pyramid: the base and the tip.
[...][T]he characteristics of the pyramid's base must be understood before meaningful inferences can be drawn about any other aspect of the handling of tort cases in society.
Analysis of “lumping,” negotiation, settlement, or the decision to litigate depends on information about the pyramid's base: the number and kinds of injuries that occur in society and the ways in which individuals interpret them - the raw materials from which claims, disputes, or lawsuits might be fashioned.Understanding the base of the injury pyramid is thus essential to the analysis of all the other layers, including the litigation of tort cases. The perception and interpretation of injury determines all that follows - whether the injured person holds another party responsible, whether compensation is expected or demanded, what mechanisms for obtaining compensation are considered, and whether legal or other normative systems are invoked to assess the responsibilities of the parties. At the base of the pyramid, cultural factors are extraordinarily important. Here the analysis of legal consciousness can shed considerable light.
Our methodology for exploring the legal consciousness of ordinary people at the base of the injury pyramid in Chiangmai builds on research that examines how individuals tell stories about their lives, their experiences, their social relationships and interactions, and their sense of self. Such narratives are used primarily to understand the subjectivity of the narrators - how they interpret events, how they explain their own behavior and that of others, and how they view themselves in relation to the world around them and in relation to legal norms, procedures, and institutions. We encouraged interviewees to provide an extended narrative covering a broad sweep of time, in which they described their lives from childhood to present and the changes that had occurred in their social environment over a period of many years. Within the broader narrative of their personal history, they located the specific incident that caused them to seek treatment in a hospital for physical harm.
To obtain the injury narratives of ordinary people in Chiangmai, we identified a large hospital that treated patients from the entire province of Chiangmai and thus drew cases from a “jurisdiction” comparable to that of the provincial court.
With the help of the staff at Suan Dok Hospital, we obtained the names of ninety-three current or recently discharged patients who had volunteered to participate in interviews. All had suffered physical injuries involving the conduct of another party. After recording baseline data for all ninety-three volunteers, we selected thirty-five for extensive, in-depth interviews, which we conducted in Thai at the hospital or at the interviewee's home or place of work in 1999. Participants were chosen to provide a range of perspectives, based primarily on rural versus urban background, gender, circumstances of the injury, and age. Despite its diversity, this group was not a random sample of Chiangmai's population. The thirty-five interviewees were not selected to make quantitative predictions about a broader universe, but they do illustrate in considerable depth some of the ways in which globalization has affected the legal consciousness of differently situated individuals in Chiangmai.This study focuses on the subjective and interpretive processes that occur in the pyramid's base, but the findings have implications for each succeeding level of the pyramid, including the use of courts and lawyers. While a systematic study of the entire injury pyramid in Thailand was beyond the scope of this study - and unfortunately there are few other studies of the injury pyramid in Thailand - we sought to shed additional light on the injury narratives by interviewing a number of other persons who had knowledge of injuries, village life, insurance, negotiations, legal practice, and other matters relevant to our study. Our study therefore included more than sixty-five additional interviews with a broad spectrum of persons ranging from village leaders to insurance adjusters, monks, spirit mediums, attorneys, judges, Thai scholars, doctors, government officials, and others. These interviews supplemented the thirty-five interviews with injury victims.
The second major component of the study, in addition to the interviews described above, consisted of an exploration of the tip of the injury pyramid - the Chiangmai Provincial Court.
We had the great advantage of having researched tort litigation in the same court twenty-five years earlier. From r974 to 1978, we had surveyed all the case files in the Chiangmai Provincial Court for cases litigated from 1965 through 1974. In particular, we obtained detailed information taken from the pleadings, witness testimony, and judicial opinions of every tort case that appeared in the court during four of those years: 1965, 1968, 1971, and 1974. Further, we had conducted interviews in 1975 with litigants, lawyers, judges, police officers, village leaders, and others. Our study in the late 1990s was, in some respects, a “restudy” that involved a return to a familiar setting and provided an opportunity to trace changes and continuities over a relatively long period of time.From 1997 to 2000 we once again surveyed the docket of the Chiangmai Provincial Court, this time selecting cases litigated from 1992 through 1997. Using the court registers, we identified every injury case filed by a private party. Most took the form of civil actions, but some were litigated as private criminal cases. We retrieved and photocopied the entire case file of each of these civil and criminal cases, analyzed their contents, and compared them to the ten years of cases we had studied during our previous fieldwork in 1975. As we shall discuss in later chapters of this book, we found to our surprise that tort litigation rates at the tip of the injury pyramid had actually decreased over the past quarter-century, and this finding proved to be consistent with the alienation from law we discovered at the base of the injury pyramid. These parallel developments at different levels of the pyramid invite more general theorizing about the relationships among globalization, legal consciousness, and tort law in Thailand. Therefore, although much of this book focuses on the injury narratives, we analyze them with one eye on the diminished rate of litigation in the formal legal system, and we suggest that both the base and the tip of the pyramid reflect and contribute to the social transformations Chiangmai has experienced during the past twenty-five years.
The Engels' book spanned four decades of research, from initial fieldwork in the 1970s to publication in 2010, a length of time that seems rather unattainable for younger scholars. The next two readings demonstrate feasible strategies to conduct law and society research without having to spend decades in the field. Nevertheless, both of these research projects share the common characteristics of still requiring considerable time in the field and employing a mix of methods.
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