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 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.

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