Alexander Shytov, Chiang Mai (Thailand): Folktales as the Source of Law

Abstract: This paper presents one argument against the fundamental principle of legal positivism: the separation of law and morals. This principle is based on the view that morality is intrinsically subjective, while law presents objective standards of social behaviour. The author argues that there is a valid source for identifying the morality which is not individualistic but shared by the whole community. This source is found in simple narratives of folktales. The lawyers need folktales to identify moral principles shared by the community when it is warranted by the letter of law itself (such as human rights issues). Even when there is no apparent need to determine the content of public morality, folktales are still helpful in presenting principles and illustrations that are vital to grasp the spirit of law. The contemporary law moves towards increasing technicality, and therefore, it poses a challenge to the rule of law and democracy. In the technicalities of law, the spirit of law is obliterated. This is particularly seen in the countries such as Thailand and China. Those countries view law as a machine of social control and manipulation. Law becomes the means of oppression. The cultural roots of law are ignored. Folktales contain a message of wisdom so desperately needed among Asian lawyers addicted to legal formalism.

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