The Kelsen-Schmitt debate and the use of emergency powers in political crises in Thailand

Abstract

Carl Schmitt and Hans Kelsen were prominent jurists during the Weimar Republic who engaged in the debate on the nature and use of emergency powers in a political crisis of liberal democracy (‘PCLD’). As a liberal, Kelsen advocated a law- based response to an emergency situation together with the narrow interpretation of emergency powers and constitutional review, whereas as an anti-liberal conservative, Schmitt called for legally unconstrained emergency decisions by the sovereign to exclude ‘ enemies’ causing a political crisis. This thesis considers how this debate might apply to Thailand. In post-absolutist Thailand after 1932, the conflict between the pro- democracy and the conservative factions reflected the PCLD, and resulted in military coups together with martial law supported by the suspension of liberal democracy viewed as a threat to the nationalist-conservative tradition known as Thai-ness and other uses of emergency legislations by the government of both factions. Though the royalist-conservative, later known as the ‘Yellow’ faction, still holds the upper-hand in politics given its ability to engineer a coup—the invocation of sovereign authority in the Schmittian sense—such hegemony and ability have been declining in recent years due to the struggles for a commitment to liberal constitutionalism, including the fuller implementation of the Kelsenian project in 1997. The application of the Kelsen-Schmitt debate in the Thai context accordingly exemplifies an aspiring democracy struggling against the declining hegemony of the Schmittian idea. It then reveals what I call the binary-star conception of emergency powers which shows the gravitational pull between the increasing need to liberalise and institutionalise the Schmittian idea, especially by resorting to a Kelsenian legal-rational legitimacy, and the growing need to resort to Schmitt’s idea of political struggle to move the Kelsenian liberal-democratic project forward. Such pull suggests an alternative normative perspective for reading Kelsen and Schmitt—‘pragmatic hybrid’ which comprises the ideas of ‘the paradoxical friction’, the politics of ‘defective co-optation’, and ‘the fragile equilibrium’. The applicationof the Kelsen-Schmitt debate in Thailand then directs us to reassess their theories of law and politics, the conception of authority to invoke emergency powers, notably the competing conceptions of institution (i.e., the tension between legality and law) and the state of exception, their debate on the scope of emergency powers in political crises, the conception of legal and political accountability for the invocation and use of emergency powers, and the agony of heteronomy. It ultimately suggests reconsidering the theoretical structure underlying Kelsen’s and Schmitt’s models, including the function of liberalism in their debate.

Date of Award	23 Jan 2019
Original language	English
Awarding Institution	The University of Bristol
Supervisor	Steven C Greer (Supervisor) & Athanasios Psygkas (Supervisor)