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Law as Indigenous Social Theory: A Siamese Thai Case Author(s): Richard A. O'Connor Source: American Ethnologist, Vol. 8, No.

2 (May, 1981), pp. 223-237 Published by: Blackwell Publishing on behalf of the American Anthropological Association Stable URL: http://www.jstor.org/stable/643885 Accessed: 05/11/2008 02:09
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law as Indigenoussocial theory:a Siamese Thaicase

RICHARD A. O'CONNOR-University of the South

Societies, Geertz (1973:453) tells us, "contain their own interpretations." This paper will view traditional Thai law as an indigenous social theory-an interpretation-of historic Thai society. Treating law as a theory calls into question more traditional approaches that treat law as a category of phenomena and as an empirical subject. Glance at an introductory textbook, a job listing, or a meeting program, and law appears as one of the lesser categories that along with kinship, politics, economics, religion, and others is representative of the way that anthropologists divide up the world. We use these categories to make sense of our work to ourselves, our colleagues, and outsiders. Most anthropologists would agree that these categories are a product of our own culture; they do not always "fit" the peoples we study and they do not describe the nature of the world (e.g., Geertz and Geertz 1975; Sahlins 1976:205; Dumont 1977:24-25). Nonetheless, this realization has yet to revolutionize anthropology's subfields predicated, as they are, on the study of particular subjects. As a subfield, legal anthropology remains tied to law as a subject, although current work is taking it away from these moorings. Law requires description and definition; description means the ethnography of law and implies a defined subject. Initially, defining law virtually preoccupied legal anthropologists (see Bohannan 1965:33). More recently, they appear to have largely abandoned delineating law as a distinct subject. Thus, Collier (1975:121) could eschew definitions of law and still cover recent developments. But some of the implicit answers to these older definitional questions are still accepted. By conceptualizing law as a subject, the legal anthropologists engender several problems that might be solved by viewing law as a theory. Let me focus on two of these problems. First, law is seen and studied as an institution, even though this ignores a great deal of law-oriented behavior. Some legal anthropologists have tried to close this institution-

often treatlaw as a discretesubject classifiedwithpolitics and Anthropologists power and studied by nomothetic constructs. Thistreatmentpresupposesthe place of law in society and denies history.Tosee law as a culturallyconstituted mode of analysisthatprojectsan indigenoustheoryof society is to view a societhat it need not fit preterms,and therebydemonstrate ty in its own idiographic established classification and constructs. TraditionalSiamese Thai law is presentedas an indigenousand historicaltheoryof society that links law with
religion and meaning. [legal anthropology, culture and meaning, historical anthropology]

Copyright ? 1981 by the American Ethnological Society 0094-0496/81/020223-16$2.10/1

law as indigenous social theory


behavior gap by focusing on choice making. The study of choices allows an investigator to see how individuals use the law under specific circumstances and thereby fit it within its larger institutional framework (Collier 1975). But the gap between institutional and behavior-oriented perspectives has long existed in Western social theory. As a subject, law has traditionally been associated with politics. Politics looks at power, and power is a means by which to close the gap between law and behavior that virtually presupposes their separation. As a theory, law might as readily be associated with religion. Religion looks at meaning, and meaning presupposes an identity between a larger enduring order and the individual (Geertz 1973:87-125). Law, then, might act as a meaningful link between the individual and a societal world that is ultimately sacred (e.g., Durkheim 1965). Second, so long as law is treated as a subject, the law-society relationship will be understood by means of higher-level theoretical constructs such as culture, social structure, and social system. Thus, the traditional study of law inherits the weaknesses of these nomothetic constructs. One weakness is that these constructs predispose the analyst to create whole systems out of what Moore (1978:3) has called "partial order and partial control of social life by rules" (emphasis in original). This, in turn, almost precludes the study of idiographic phenomena variously labeled as history, social change, or process. This problem-specific critique suggests a more general one: if idiographic phenomena are arbitrarily excluded from the analysis, can the order created out of the included phenomena be anything but arbitrary?Indeed, a system that cannot explain change cannot really explain stability (Cohen 1968). However, if law is seen as a theory in itself, it need not be tied to these general and problem-specific limitations of contemporary theories. By the same token, it need not be tied to the definitional, institutional, and political concerns that encumber law as a subject. In contrast to law as a subject, I shall argue that, in at least some cases, law is a culturally constituted mode of analysis that projects an indigenous theory of society. Superficially, this approach resembles that of historians and legal scholars who have analyzed constitutions as formal theories of the state. Of course, the latter approach often removes law from its cultural context. By ignoring fieldwork and treating law literally, such an approach ends up with a Western theory. To understand law as an indigenous theory we must treat it symbolically and explore how this mode of analysis interacts with the reality it defines. Unquestionably, in defining its own reality an indigenous theory focuses on only particular phenomena, but the same can be said of culture or any other theory: all must distinguish between significant and insignificant events if only to order phenomena. The question is, how are the significant events chosen? In this light the selectivity of law or any indigenous theory is a valuable methodological tool. Not only is its choice on firmer footing than a priori external constructs, but some indigenous theories may make it possible to study the idiographic phenomena that contemporary theories cannot. Obviously, this last possibility depends upon the case chosen. My case will be the traditional law of the Siamese Thai,' one of the Tai peoples of Southeast Asia. I first describe this theory of Thai society. My objective is to show that this indigenous model crosscuts the idiographic-nomothetic division at the heart of most social science theories. It therefore throws into question the validity of such theories for understanding Thai law and the Thai. Second, I show that separating the nomothetic from the idiographic misconstrues the Thai order of things, while viewing Thai law as an indigenous theory does not. Finally, I argue that the case of Thai law suggests that anthropologists look at law as a theory and not simply as a subject.


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traditional Siamese Thai law2

In the first few centuries of the Christian era, Indianized states appeared in mainland Southeast Asia. Although they were indigenous Pyu, Mon, Khmer, and Cham states, they were clothed in Indian symbols. Their temples honored Indian cults and their cities and societies were shaped to mirror the order of the Indic cosmos (Heine-Geldern 1956). Later, Burmese (9th century) and then Tai (11th century) states arose, adapting this Indic idiom to their own cultures. These newcomers and their predecessors shared an Indic concept of law as Dhamma (Pali) or Dharma (Sanskrit)-the ineluctable order of a moral cosmos. A king or a people did not create or enforce such "laws," but the wise conformed to them and prospered while the foolish ignored them and ultimately suffered. These laws had several Indian sources. Traditionally, they were embodied in the Dharmasastras which elaborately prescribed the proper order of all things down to the minutiae of purifications and house proportions. These lawlike texts were known in Southeast Asia, but they lost many of their Indian meanings (Hooker 1978). Indeed, they could not have kept these meanings. If a caste system hinged on the separation of power and status, then Southeast Asia had no castes (Dumont 1970:215); and when the Khmer king created varnas he did not make his people into Hindus, he apparently only reorganized his palace officials (Mabbett 1977). Thus, the intricate, particularistic web of the Dharmasastras tied them tightly to Indian society and only encouraged Southeast Asian reinterpretation. As a prophet, the Buddha Gautama cut this web, leaving a radically simplified and universalized Dhamma, and this too was borrowed and interpreted by Southeast Asians. Southeast Asians borrowed these laws eclectically, often ignoring differing and even opposing Indic concepts of law. They used status-specific Dharmasastras alongside of, or sometimes set within, the Buddha's universal status-denying Dhamma. Historically, though we can distinguish the Sanskrit Dharma from the Pali Dhamma of the Buddha, the Thai word Thamma shows their fusion. Although its orthography shows its Sanskrit origin as Dharma, the Thai Thamma can only be pronounced as Dhamma, the Pali term; moreover, its meaning encompasses everything from Dhamma as the teachings of the Buddha, to law, rule, tradition, justice, and Dharma (Pin 1973; Rajavaramuni 1975; Ratchabanthitsathan 1950). It is in this sense, then, that Indian distinctions and specific religious doctrines merged into an overarching concept of Dhamma as cosmic law, the moral order of all things. Within this Southeast Asian context each people and each era worked out its own legal systems, elaborating some Indian distinctions, abandoning others, and imposing new indigenous ones. Here the Mon played a pivotal role. Their wet rice homeland in the Chaophraya and Irrawaddy river basins was a center of Theravada Buddhism. Like the Buddha, the Mon stripped away the Brahmanical particularities of the Dharmasastras, leaving what Lingat (1950:14) has called "a perfect civil or lay code." Eventually the Mon succumbed to Burmese and Thai rule, but their legal code and style of Theravada Buddhism passed to their conquerors. The Burmese restored religious substructures to the legal code (Lingat 1950:18), while the Thai continued the separation so that cosmic law was the context, but not the content, of the ordinary law. Using the Mon-derived Thammasat (from Dharmasastras) as the natural law core of their legal code, the Thai appended the lawlike edicts and decisions of kings to create a system of positive law (see Figure 1). Unquestionably, this was a watershed in the evolution of Thai law, but it did not fully separate the positive law from its cosmic context. All scholars since Lingat (1950) have celebrated this historically unique birth of a Southeast Asian system of positive law. But their emphasis on this historical development and their analyses of the positive law as

law as indigenous social theory
















Fig. 1. Sources and development of Siamese Thai law.

though it were self-contained hinge on the Western positive-natural distinction. This makes the change seem far clearer and more absolute than it ever was for the Thai. There is no historical evidence that the traditional Thai saw this as a dramatic change or that they ever unambiguously formulated the positive-natural law distinction. Unlike the West, where natural law opposed and sometimes replaced sacred law (Weber 1954:226), the Thai set one within the other like Chinese boxes; the positive law was simply yet another box within a box. Of course, this metaphor is somewhat deceptive. It makes each box discrete, like the clearly bounded Western natural and positive law categories. Forthe Thai. the legal system flourished on the ambiguity between cosmic, natural, and positive law. The meaning and continuing force of the king's law for traditional Thai society lay in its ancestry in cosmic law (e.g., Hooker 1978:217). The acts of kings were "illustrations of the Eternal Law"(Lingat 1950:27). Ideally, the king had this authority because he embodied the cosmic law. On the one hand, this embodiment had strong institutional and symbolic roots that linked and sometimes fused the king with the cosmic order.3 On the other hand, the king continually had to validate his great merit through success in everything from war to the practice of kingly virtues such as alms giving. Those of great virtue prospered, their realms expanded, and their pronouncements endured.4 Those of little or no virtue courted disaster. To the extent that their lawlike pronouncements violated the cosmic law, they would not endure. Thus, the Northern Thai Yonok Chronicle (1961:182) tells of a king who ignored an old woman's protests that her son beat her. The king ruled that so long as she did not die from the beatings, it was not his concern. All the good people then fled, and that night-the earth swallowed the king and his city. Such tales clearly distinguished between royal and cosmic law, even as they spread the


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ideal of their convergence. Instead of an independently valid and self-contained royal law, the corpus that remains from the early Bangkok period (1782-1868) is replete with rationales, explaining why in the name of order, tradition, or justice people should abide by a particular law. This legal realism reminded all that unless royal laws had cosmic roots they could not endure and would not be obeyed. Irregularly, apparently by review (Lingat 1950:28), royal laws and decisions were abridged and appended to the relevant section of the Thammasat. At least in the case of the council that organized the 1805 legal code, known as The Law of the Three Seals (Kotmai TraSam Duang 1972), they did not hesitate to delete, and perhaps even destroy, laws that they deemed unjust (Dhani 1955:28; Wenk 1968:37). Over time, royal law either merged with natural law or it disappeared. And kingdoms either abided by cosmic law or they too disappeared. Time, then, rewrote the law as law wrote history. It is in this sense that, instead of a self-contained system of positive law, traditional Thai law was like a set of Chinese boxes. It began at the moral cosmos. Enveloped by the cosmic law was the natural law (Thammasat). Inside this was royal or positive law. Here the king promulgated law as both a great emperor and a Buddha-to-be. Thus, this theory of Thai society began at the moral cosmos and worked inward to the king and then through him to the whole of society. When King Trailok promulgated the Palantine Law (Kot Monthianban) in the mid-15th century, he acted to bring order to the social world that it might fit with the cosmic one and insure the prosperity of his realm and the perpetuation of his rule. The traditional legal code itself was organized according to this inward movement. The first of its 29 sections was the Thammasat, followed by the god Indra's instructions to judges (Intharaphat), and then the Palatine Law. Within this, each section dealt with a specific category of law which referred to the Thammasat. Accordingly, the section on offenses against the crown committed by officials (LaksanaAyarat) opens by referring to the Thammasat and then records this law as it was promulgated by King Uth9ng in 1352, followed by articles added by later kings. These additions are often highly specific cases (see Hooker 1978 and Sarasin 1977 for more complete surveys). The result was a complete legal code, analogous to the Dharmasastras in its elaboration of detail, but radically different in the relation of the particular to the general. To understand this it is useful to consider an Indian distinction. Dharma could be known directly through revelation (Iruti) or indirectly through tradition (smrti) as transmitted by a sage (Lingat 1973:9). In early times, the Dharmasastras had both types of knowledge, but eventually they came to be a locus of tradition, and "what had been a living source [became] fixed" (Lingat 1973:13). For the Thai, by contrast, their Dharmasastra-derived Thammasatremained open and changing. They not only added sections, but they continued to append royal laws. These changes made by sacral kings parallel the role that revelation once had in India. From this perspective, we can see how the two differed in the relation of the particular to the general. In the Dharmasastras the details made up the whole. Each detail was intrinsically meaningful because it was both a ritual duty and a part of the whole. Taken literally, these details added up to a single system. Indeed, Lingat (1973:4) found that the most frequent Indian meaning of Dharma was "the totality of duties." The whole, then, could be understood as the sum of its parts. In the Thai legal code, however, the details were the inevitable yet variable expression of a whole that stood apart, the cosmic law. Taken literally and added together, the totality of ever-changing particular laws was not a consistent system. The system was the immutable cosmic law, the Dhamma, and it could not be reduced to its particular expressions.5 From several standpoints we can see that the Thai viewed these lesser laws particularistically. If we can judge from The Law of the Three Seals and later proclamations, law meant particular acts and decisions of particular kings. Of course, within the domain of

law as indigenous social theory


royal law only the elite could be expected to know many of the particulars-this was the sophistication that set them apart from commoners. As for the commoners, while they shared the traditionalism and personalism of those who ruled, it was assumed that they knew few of the actual particulars of the law. For them, law translated into the particular demands of particular known superiors; it was not what was "on the books," but what was enforced, how, and by whom. This particularism pervaded the legal code and the organization of traditional Thai society. The generality of the king's lawmaking powers and responsibilities implied and produced many highly particularistic laws. General laws, such as those organizing society into ranks, were accompanied by highly specific proclamations, such as one correcting the misspelling of a name and setting a fine for the error (Mongkut 1960-61, IV:113-117). The ordinary mixed with the arcane because the king had the power and the responsibility to order his realm, and no easy distinction separated the trivial from the crucial. Indeed, early chronicles told how disaster had followed even small missteps. Thus, the generality of the king's lawmaking powers, a consequence of their cosmic roots and rationale, demanded laws of the most particularistic sort. Thai society was built around joining (not reducing) the particular to the universal. Particularism thus colored the context as well as the content of Thai law. In the formal organization of society, everyone had a numerical status rank, a sakdina that specified their place and privileges in the social hierarchy. At the top was the king, whose sakdina was infinite; below him was the second king with sakdina 100,000; lesser royalty and the nobility had lesser sakdina, decreasing in small steps; below them, a married commoner had sakdina 20 to 25 and an unmarried one had less; and finally, at the bottom, destitute commoners and slaves had sakdina 5 (Akin 1969; 1975:102-103). Instead of a few class or castelike social categories that shared the same legal rights and obligations, the finely gradated sakdina rankings shattered larger groupings to define a person's legal status according to a highly particularistic hierarchy. Severity of punishment increased with the rank of the offender. According to the section on fines and compensation (Laksana Phromsak), a commoner of sakdina 10 would be fined twice as much as one with sakdina 5 for committing the same crime. But fines also increased with the rank of the victim. A wrong against a person of sakdina 10 carried double the fine for a similar offense against someone of sakdina 5 (Sarasin 1977:118). Many scholars have taken the sakdina and other royal laws as though they were the order of traditional Thai society (e.g., Wales 1934; (thit 1975). This would make the laws into a single consistent system, when they were meant as expressions of the encompassing cosmic law. It would also endow that system itself with authority when it was the king or lesser paternal leaders who held authority. Ultimately, the royal laws had to fit into the paternalistic social organization of Thai society, the other dimension of Thai society that reached from the king to every commoner's household. Thai paternalism is usually associated with the Sukhothai period (13th-15th centuries). The late 13th-century Sukhothai inscription of King Ramkamhaeng is generally regarded as the cornerstone of the traditional Thai legal system (Sarasin 1977:84). It depicts a paternalistic king who hears grievances on appeal and respects rights of inheritance and land ownership. Ayutthaya (14th-18th centuries) challenged and finally succeeded Sukhothai as the Siamese Thai capital, establishing a seemingly vastly different style of kingship. The whose harmony with the cosmic Ayutthaya king was a universal monarch (Mhakraphat) world made him the interpreter of its laws and thus the maker of particular laws for all beneath him. Yet, this link with cosmic law did not preclude paternalism; indeed, cosmic law presumed paternalism by making law esoteric. Since law was esoteric, the few who knew and understood it had to apply it pater-


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nalistically to the many who were ignorant. Not surprisingly, a small elite controlled knowledge of traditional law. Originally, only three copies of The Law of the Three Seals were made, and early efforts to publish it were thwarted (Sarasin 1977:81). By the same token, only the privileged had access to the royal library with its collection of laws (Damrong 1973:115-116). With knowledge and understanding thus embedded in the social hierarchy, the presumed ignorance of the lowly required paternalism in the administration of justice. This appears with startling clarity in a Northern Thai law text. In one clause it decrees that deserters in battle are to be executed; two clauses later it specifies that they should only be tattooed on the forehead because anyone might succumb to fear (Griswold and Prasert 1977:148-149). Although this is outside the Siamese Thai tradition, it suggests that, however strict the written law seemed to be, it could be applied paternalistically. The esoteric character of law also justified leaders as interpreters of the laws for their subordinates. Since the intricacies of the law were beyond the grasp of ordinary people, such people should follow those who knew more than they. Of course, the final interpreter was the king, but below him lesser officials, local leaders, and finally elders each translated the more general laws that came from their superiors to the particular rules that were to govern their subordinates. As law moved particularistically inward, it concurrently traveled down the social and political hierarchy. If the cosmos was the primary level and the king the secondary one, then lesser leaders and officials under the king were a tertiary level. Unquestionably, the king was the pivot of the legal system, but he could rule only by delegating his powers. This meant that the princes and nobles who ruled provincial towns and ministries made regulations and administered justice within the king's laws, just as the king made laws and brought order within the larger cosmic laws (see Engel 1978:18-24). Formally, ministers and provincial governors had their own courts designed to handle disputes within their jurisdictions (Akin 1969:66-74; Engel 1975:62), and they would set the lawlike rabiap (rules, procedures) for their subordinates. Even with modernization, in the Fifth Reign provincial governors were formally granted limited legislative powers (Engel 1975:49-50), and within his jurisdiction a minister might enact rules such as the municipal edicts (thesabanyat) of the ministry of the city. Of course, this official delegation of authority was only the formal or royal apex of much broader local paternal powers. Unlike the theoretically specialized bureaucracy, popular Thai concepts of rule combined executive, legislative, and judicial functions in the role of the paternal leader. However much a king might try bureaucratically to stem this outward flow of power, so long as the masses were Thai, those delegated to rule held broad paternal powers. When war or weakness swept aside royal supremacy and bureaucratic constraints, such local leaders became kings in their own right. Ultimately, as the interpretation and reinterpretation of law moved inward from the cosmos and down the social hierarchy, it came to rest on custom. Here elders were its interpreters and guardians. Although seemingly a long way from cosmic law, Dhamma (Thamma) was the well-known root of the word for custom (thamniam). According to Prince Phichit (1929:128-129), thamniam was a popularly accepted essence of the Dhamma which the king protected and promoted by making laws for the good of all.' Although Engel (1975:9-10) rightly questions the historicity of this idea of a social compact, it seems clear that the prince's theory does fit the popular significance of custom as an esteemed, lawlike ordering of people and behavior which is analogous and often linked to the lawmaking royal order (O'Connor 1978:279-287). Indeed, custom and royal law clearly overlapped in the royal household which, through its extensions, embraced the whole of the royal government and ultimately the kingdom. At the highest echelons, seemingly obscure customs merited royal proclamations. On the one hand, royal custom centralized society in the

law as indigenous social theory


order at its top; on the other hand, by recognizing custom it dispersed authority to elders and teachers who knew and interpreted local customs. The Thai saw custom particularistically, as they saw royal law. Custom was unique to people and places. From dance and dress to rule and religion, the traditional way of doing things identified and joined the Thai as a people apart from others; at the same time it separated them into groups, distinguishing Siamese from Northern Thai, one city from another, and even one village or temple from its neighbor. Culturally, a person had a place in the whole of society through, and not despite, his unique local group. Politically, those forcibly or voluntarily incorporated into a Thai polity were left under the authority of their own leaders and customs, thereby blocking direct assimilation. As the last and broadest point on the movement inward from the universal cosmic law, custom had meaning because it was both particular and prescriptive. In the everyday world the universal could be realized only in an order and ordering of the particular. How, then, was a law a theory of society? The final reality was cosmic law. All other things were merely particular expressions, indeed direct consequences, of the working of its universal principles. A society lived and died according to the cosmic law. Legends and ruins told of long-dead societies that had violated cosmic law. And the Thai saw the life of their own society in the everyday customs and rules that ideally mirrored cosmic law. Figure 2 depicts the major components in the way law worked as a theory of society. Law (the top line) was known, expressed, and administered by leaders in the social hierarchy (the middle line), and this created the collectivities that made up society (the bottom line). To give a brief, modern example, an abbot once told me that with no temple rules (rabiap wat), there was no temple. He did not need to say that they were his rules and that they had to fit within municipal, ministerial, and national laws, monastic discipline, and ultimately cosmic law as revealed by the Buddha. Of course, as we add societal dimensions, this inclusive ordering becomes ambiguous. In Figure 2 we can read this inclusiveness along any single line (e.g., positive or royal law subsumes custom), or vertically between lines (e.g., existing positive law subsumes the king).















Fig. 2. The inward movement of law and society.


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To show how society was made in the image of the law, let me briefly describe this inclusive pattern in society, beginning with the smallest social unit (the bottom line) and working upward. One word for house (ban) also meant the village that subsumed it. The village was subsumed by the city (muang), a word that meant both the city itself and all of its realm. Ordinary cities were subsumed by the capital city (muangluang). At all levels these social units were seen in terms of their leaders (the middle line). When a ruling noble moved his house, the "city" moved with him. A single paternal idiom united everyone from household heads to the king. In this inclusive pattern, each higher-level leader had a larger "family," until the king's "family" included all his subjects and the kingdom was an extension of his household.7 Society, then, followed the same inclusive pattern as the inward movement of law. Traditionally, anthropologists have interpreted such parallels by taking their constructs as prior: law was in the image of society. But this inverts a Thai perspective. To extend the aforementioned abbot's reasoning, without cosmic law there would be-could be-no world; without natural law there would be no civilization; without positive law and customs there would be no Thai.

Thai law and understanding

Thai society

As a way of understanding the Thai or any society, indigenous theories have both virtues and drawbacks. Let me first consider two methodological problems and then discuss the strengths of the approach. Like subfield boundaries and nomothetic constructs, indigenous theories dictate what we can know. We need to recognize these limits and, in the case of traditional Thai law, we have to ask a key question: Whose theory was it? It was not the peasants' theory. They knew only its link to custom and their local ruler, though surely they learned its premises at the village temple. Many provincial elites must have had their own theories. Self-interest, isolation, and ethnic differences would have led to differing interpretations, though surely all Thai interpretations shared many assumptions. Except in times of war, the great capitals of Ayutthaya and Bangkok had little more than their prestige and personal loyalties to bind provincial elites to their laws. Ultimately, then, this theory, this interpretation of Thai society, was held by a small Siamese Thai elite in the capital. Here the essentially elite nature of our written sources limits us. But, taking law as a theory, can we generalize further? For the theory to "work," it had to fit with or, as the theory assumes, subsume provincial and peasant realities. So the very success of the Thai state suggests that this elite theory did correspond to more popular notions of law, perhaps through a process of mutual adaptation. Of course, this qualified generalization seems paltry compared to law interpreted through social structure, culture, or other nomothetic constructs. Unfortunately, these constructs offer generality only by presuming it. Similarly, a study of the original Indic texts would reveal a complex theory of society, far richer than what remains in traditional Thai law. But we do not know how the Thai interpreted these texts. Indeed, all we do know is that they reinterpreted them through traditional Thai law. If this theory tells us primarily about the social theory of the Siamese elite, at least it is a beginning to the study of the many other theories it subsumed and their historic interactions. Can indigenous theories be as logically complete and rigorous as a social science theory? Thai law certainly was. Any apparent inconsistencies were ultimately resolved in a religious tautology. To paraphrase Geertz (1971:39; 1973:87-125), the cosmic law gave symbolic form to everyday experience, while this experience lent meaning to the law (cf. Keyes 1977:73). Moreover, this particular tautology rested on the logically perfect theodicy of kar-

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ma (Weber 1964:145-147). How could an omnipotent God or a totally moral cosmos explain the many injustices a person suffered in the everyday world? If you believed in karma, then all present imperfections were explained as direct moral consequences of past deeds. Similarly, any logically complete social science theory must also reconcile itself with the disordered imperfection of the world. And if one believes in the nomothetic-idiographic division, then order is guaranteed by eliminating the imperfections as idiographic phenomena. In sum, both Thai law and social science theories can be logically complete systems of analysis. If their internal logic is comparable, how then do we choose between an indigenous theory and a social science theory? Of course, an indigenous theory has firmer methodological footing because it is a part of the reality it purports to describe. For this same reason I would argue that it can see things and answer questions that social science theories cannot. Let me give three Thai examples. First,Thai law can "see" history and process simply because this is the way the Thai used it. Ultimately, cosmic law was both universal and timeless, but through its inward movement it explained all particulars, celebrating the personal and the historic as unique expressions of the universal. In contrast, social science is predisposed to "see" synchronic systems and ignore history and process. A rigorous nomothetic model throws out the particulars, forces the ambiguity of the inward movement into one or more discrete legal systems, and misconstrues the universal as the recurring. This destroys the Thai meaning of these phenomena and replaces it with the implied meaning of the external analytical construct. It also adds the construct's inherent problems: a blindness to social change and a proclivity for seeing an institution-behavior gap. Second, when law is seen as the structure of Thai society (e.g., Wales 1934), it is usually opposed to social change. As a Thai theory, however, this opposition is unnecessary and inappropriate. For example, royal proclamations designated the rank and perquisites of all royal temples in traditional society. If law had been its structure, this would have been a stable hierarchy. At least by the Bangkok period, however, archival records show that temples rose and fell erratically (O'Connor 1978:128-131). Such change was integral to the everyday functioning of Thai society. Tambiah (1976) sees this dynamism as a consequence of deep-seated dialectical tensions in the religious and royal laws upon which the Thai polity was built. But one need not, perhaps cannot, go so deep. As a theory of how things should be, Thai law demanded change; it also left open the particulars of how each case was to be constructed. Thai law assumed change and variation and we can gain nothing by reducing it to the statics and uniformity of structure. Third, when law is taken as the structure of Thai society, an extremely wide gap is created between institutions and individual behavior. This problem has crystallized in the "loose structure" debate about Thai society (Evers 1969; Bunnag 1973; Potter 1976). Embree (1950:182) coined the term to contrast Thai society with "tightly woven cultures" such as Japan or Vietnam, "whose patterns are clearly marked and which emphasize the importance of observing reciprocal rights and duties," with more "loosely structured" cultures such as Thai, "in which considerable variation of individual behavior is sanctioned." He thus set off a debate over whether or not Thai society is really "loosely structured." As Kirsch (1969:41, 59) has pointed out, this discussion has mistakenly focused on the uniqueness of Thai society rather than on the adequacy of the theories used to understand it. Indeed, the problem seems to spring directly from the way these theories focus on the institution-behavior gap. As this gap grows wider, it is seen as threatening the social order, although it only threatens the theories themselves. The Thai see such a gap as evidence of the social order. Behavioral differences express the differing moral states that make the Thai social order a hierarchy. A king doesn't conform to the same rules as a peasant; a civil


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servant doesn't abide by the same discipline as a household servant. If there is to be a hierarchy, then people must differ in the lawlike orders to which they conform. This was once elaborately though partially codified in The Law of the Three Seals; today it is an assumption still rooted in cosmic law. Of course, people also differ in their adherence to the particular lawlike orders that enter their lives. Everyone can choose to conform to the larger Buddhist and Thai orders by making merit, respecting elders, caring for juniors, and leading a disciplined life. But in all cases the Thai assume that people will differ in their ability and inclination to adhere to the ideal order, and they thereby assume that they live in a hierarchical world. As with social change, this social science anomaly is integral to the functioning of Thai society. Thus, the disorder of "loose structure" is, from the perspective of Thai law, the order of Thai society.

law as theory
The case of Thai traditional law suggests that definitional, institutional, and political concerns, all facets of law as a subject, have overshadowed the theoretical potential of law and the importance of meaning. Consider, for example, Bohannan's (1965) definition of law as double institutionalization. It is a theory about societies that tells us little about a particular society. It is meaningful to the analyst, not to the native. Double institutionalization roots law in society and its norms. The Thai, however, root law in the cosmos. When Bohannan (1965:37) tells us that "law is always out of phase with society," he is a world away from the Thai, for whom society is almost always out of phase with law. Instead of interpreting law through society (or culture or social structure), as social science demands, the Thai interpret society through law. For the Thai, whenever law and society coincide, progress follows. For Bohannan (1965:37), on the other hand, their separation is necessary for growth and change. Indeed, separation is a precondition of change in his functionalist model and presupposed in his institutional focus. Of course, it is unfair to criticize Bohannan for something he did not try to do. And, ultimately, we must deal with his more general theory. But can we afford to ignore law as indigenous theory when it interprets society and solves theoretical problems created by our more general constructs? Moore (1978) solves many of these problems. Instead of denying idiographic phenomena, her law-as-process approach makes history and change an intrinsic part of law in society. Process continually disrupts law so that it cannot be studied as a whole system, as an internally consistent nomothetic construct. Yet her solution implicitly offers the old forced choice. To bring in history, she neglects meaning. While recognizing that "to the people who practice them, customs, even as laws, often seem part of the coherent logical whole," she goes on to question "to what extent they have been assembled by historical accident" (Moore 1978:14). Why choose? The Thai accepted and even assumed variation in particulars-what the social scientist calls historical accident-as expressions of a more abstract and rarely realized whole and meaningful cosmic system. This Thai alternative to Moore's (and indeed social science's) dilemma may only work for the Thai, but as Moore's (1978:4-6) lucid explication of Weber suggests, meaning and history can be, and ideally should be, complementary approaches. History reveals and shapes indigenous theories, while these theories make history interpretable. Another problem engendered by law as a subject is the gap between behavior and institutions that some legal anthropologists have tried to bridge by focusing on individual choices (Collier 1975:127). For all its promise, taken by itself this means-ends schema sees only rational decisions, even though the decisions may be both rational and meaningful, or even "only" meaningful. The modern Thai, for example, accept unbridled self-interest but

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see it as morally inferior to conformity to the cosmic and royal laws, customs and lawlike discipline (rabiap)that join a person to the larger order of society. In effect, this is how law creates a hierarchy in Thai society. It may, in fact, often be rational to choose conformity, but for the Thai this is always and irreducibly a meaningful and hierarchical choice. Because the ideology of American capitalism makes the pursuit of rational self-interest meaningful, it is all too easy to see only rationality in what can be complex and meaningful choices. If we focus on meaning, we look at law from the perspective of its strong historical affinities with religion. Weber (1964:49) found that "the transition from prophet to legislator [was] fluid." In many early civilizations, law was not fully differentiated from religion. In the West, for example, early Greek and Roman law "was at first part of religion" (Fustel de Coulanges 1960:186). Eventually, Western law diverged from religion. Instead of continuing the amalgamation of religious prescriptions and secular rules common to Asia, in the West natural law came to rival and sometimes replace sacred law (Weber 1954:226). Despite this separation, the modern elaboration of natural law grew out of the religious motivations of the rationalistic Protestant sects (Weber 1954:289). Today, this Western differentiation predisposes us to look at law as a discrete subject and to treat it literally. Here, indigenous Western theories find the consistency demanded by their long history of formal and substantive rationalization (Weber 1954). This seems analogous to Leach's (1962) observation that where Western religions find consistency in sacred texts and theology, Eastern religions use symbols. Of course, as Moore (1978) has pointed out, no legal system is entirely consistent. Yet, the natives, Thai and Western alike, see consistency. How are we to interpret this? Perhaps, as a Thai approach suggests, we should look at law through symbols and their meanings. While this may be necessary for studying law by itself, it offers the wider possibility of using law as an indigenous social theory. Obviously, if we abandon the homogeneity presumed by'our usual nomothetic constructs, a society or culture can be seen in its own terms, from many sides. Myth and ritual currently enjoy a certain vogue, but as modes of synthesis (e.g., Geertz 1973:87-125 on "fusion" in ritual) they often differ from and certainly do not preclude law as a mode of analysis. Of course, legal anthropology need not focus so far afield, but neither should it focus so narrowly that it is blind to the law's wider meanings. We can, and indeed must, also treat law as a subject-how else could we identify our indigenous theories as law? Ideally, law as theory can enrich the more traditional study of choices and institutions.

An PostAcknowledgments. SSRC-ACLS ForeignArea Fellowship(1975-76) and an SSRC-ACLS
doctoral Research Grant (1978) have supported my research and writing. I gratefully acknowledge this

financialsupportand the assistanceof the NationalResearchCouncilof Thailand.I am indebtedto Albert Bacdayan,Carol Greenhouse,A. Thomas Kirsch,CraigReynolds,RobertJ. Smith, David K. Wyatt, and several anonymousAE readersfor their commentson variousdrafts of this paper. I am
solely responsible for its interpretations and errors. 1 Siamese Thai (also Central Thai, Tai Sayam) refers to the Thai of the Chaophraya River basin, who ruled from the capitals of Sukhothai (13th-15th centuries), Ayutthaya (14th-18th centuries), and Bangkok (late 18th century-present), and who created and still dominate the nation-state of Thailand. These earlier realms and modern Thailand include other Thai (or Tai) peoples, such as the Northern Thai (Tai Yuan) and the Lao. This paper focuses on the Siamese Thai, although I use some Northern Thai examples where they illustrate generic Thai patterns. For convenience I shall use Thai to mean Siamese Thai, except where I wish to contrast them with other Thai peoples. Although this is commonly done, it is important to recognize the regional and ethnic differences among the Thai (see Chit 1976 and Keyes 1967). 2 Traditional Siamese law refers to Thai law from the Ayutthaya period through the early Bangkok


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period until the modernization of the legal system at the turn of the 20th century (see Engel 1975, 1978 for excellent accounts of modernization and its current impact). Most law texts were destroyed in the sack of Ayutthaya in 1767 (Wenk 1968:35); surviving texts were collected and revised in 1805. Presentday knowledge of traditional law is based largely on this recension and practices in the early Bangkok period. 3 The cultural support and perhaps the historic emergence of this power may be seen in the conceptual and linguistic forms that joined institution to ideal and progressively linked the Thai king symbolically to the cosmic order. In the early Siamese Thai kingdom of Sukhothai, its first great ruler was honored as phgkhun (father who is head; Anuman 1972:293); by the later kingdom of Ayutthaya, the king was elevated to the monarchical parallel of a Buddha, a universal monarch (Cakkavatti, chakraphat). A similar shift joining the political hierarchy and symbols of sanctity appeared in urban form, palace architecture, and even the temple compound (O'Connor 1978:33, 69-73). Finally, in the categorical distinction between khon (humans) and ong (sacred things), the Ayutthaya and Bangkok king was categorized as an ong along with the Buddha (e.g., Kirsch 1973). 4 See Hanks (1962) on the ambiguity of amoral power in an ultimately moral cosmos. 5 Freeing the cosmic law from its particular expressions allowed for the ethnic and regional diversity common to Southeast Asian states. It also fit well with a Buddhist perspective-there might be one goal and one Dhamma, but the paths taken varied according to the ways and wisdom of differing times and peoples. 6 Here appears to be yet another difference from India. According to Lingat (1973:14), in India "custom pure and simple is indeed a source of law. but it is not a source of dharma." 7 This idealized account is drawn from the ethnography and history of several Tai peoples (see Anuman 1972, Condominas 1978; and O'Connor 1978 for details). The Siamese Thai followed this same inclusive pattern, but it was in dialectical tension with various Indic-Khmer royal borrowings that are not considered here.



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Submitted 29 February 1980 Revised version received 1 August 1980 Accepted 21 October 1980 Final revisions received 8 December 1980

law as Indigenous social theory