Constitutional Bricolage
Thailand'S Sacred Monarchy vs. the Rule of Law
1st Edition
Published on 2. December 2021
352 pages
978-1-5099-2770-8 (ISBN)
Description
This book analyses the unique constitutional system in operation in Thailand as a continuous process of bricolage between various Western constitutional models and Buddhist doctrines of Kingship. Reflecting on the category of 'constitutional monarchy' and its relationship with notions of the rule of law, it investigates the hybridised semi-authoritarian, semi-liberal monarchy that exists in Thailand.
By studying constitutional texts and political practices in light of local legal doctrine, the book shows that the monarch's affirmation of extraordinary prerogative powers strongly rests on wider doctrinal claims about constitutionalism and the rule of law. This finding challenges commonly accepted assertions about Thailand, arguing that the King's political role is not the remnant of the 'unfinished' borrowing of Western constitutionalism, general disregard for the law, or cultural preference for 'charismatic authority', as generally thought.
Drawing on materials and sources not previously available in English, this important work provides a comprehensive and critical account of the Thai 'mixed constitutional monarchy' from the late 19th century to the present day.
By studying constitutional texts and political practices in light of local legal doctrine, the book shows that the monarch's affirmation of extraordinary prerogative powers strongly rests on wider doctrinal claims about constitutionalism and the rule of law. This finding challenges commonly accepted assertions about Thailand, arguing that the King's political role is not the remnant of the 'unfinished' borrowing of Western constitutionalism, general disregard for the law, or cultural preference for 'charismatic authority', as generally thought.
Drawing on materials and sources not previously available in English, this important work provides a comprehensive and critical account of the Thai 'mixed constitutional monarchy' from the late 19th century to the present day.
More details
Series
Edition
1. Auflage
Language
English
Place of publication
London
United Kingdom
Publishing group
Bloomsbury Publishing PLC
Target group
College/higher education
ISBN-13
978-1-5099-2770-8 (9781509927708)
Copyright in bibliographic data and cover images is held by Nielsen Book Services Limited or by the publishers or by their respective licensors: all rights reserved.
Schweitzer Classification
Other editions
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06/2023
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12/2021
Hart Publishing
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Person
Eugénie Mérieau is Associate Professor of Public Law at the University of Paris 1 Panthéon-Sorbonne, France.
Content
1. Introduction: Is Thailand a Constitutional Monarchy?
I. The Purpose and General Argument of the Book: Why the Thai Constitution Matters
II. The Issue of Royal Prerogatives in a Constitutional Monarchy: Text, Conventions and Doctrines
III. Sacred Monarchy vs. the Rule of Law: The Interplay of Law and Religion Mediated through Kingship
IV. Constitutional Bricolage: The Indeterminacy of Legal Transplants and their Political Re-assignments
V. Outline of the Chapters
PART I
IMPORTING THE MODERN CONSTITUTION
2. Siam's First Constitutions: The Rise and Fall of the Sacred Monarchy
I. The Hindu-Khmer Origins of the Traditional Constitution
II. The 1889, 1926 and 1932 Draft Constitutions: The Bonapartist and British Tropes
III. The 1932 Constitutions: The Soviet/Chinese and Prussian/Japanese Influences
3. Legal Positivism and Buddhist Kingship: Establishing the King as the Source of the Constitution
I. Hindu-Buddhist Theories: The Devaraja and Dharmaraja Kings
II. The European Influence: Importing Doctrines of Royal Absolutism
III. From the European Doctrine of 'Royal Octroy' to the King's Granted Rattathammanun
4. From the Sacred Monarchy to the Sacred Constitution
I. Royal Despotism, Theocracy and Sacred Law
II. Royal Reforms: The Westernisation of Law and Kingship
III. Royal Vetoes and Amnesties versus the Sacred Constitution
PART II
IMPORTING THE STATE OF EMERGENCY
5. Thailand's Cold War Constitutions: Constitutions for the Military
I. The 1947-1949 Constitutions: The Royalist Restoration and the Rejection of the British Model
II. The 1959, 1968 and 1972 Constitutions: Military Dictatorship and the Gaullist Inspiration
III. The 1974-1991 Constitutions: The US Influence on Military Dictatorship under Royal Command?
6. Revolutionary Legality and Buddhist Kingship: Theorising the King's Extra-Constitutional Powers in Times of Crisis
I. From Kelsen's Revolutionary Legality to Thai-Style Democracy
II. From Bagehot's Three Conventional Powers of the Monarch to the Invention of Thai Constitutional Customs
III. Revolutionary Legality Revised: The Doctrine of Shared Sovereignty between the King, the Military and the People
7. From Military Dictatorship to Military Dictatorship under (Sacred) Royal Command
I. The Monarchy against the Military: Practices of Royal Constitutional Veto
II. The Monarchy on Top of the Military: Royally Sanctioned Military Coups and Amnesty Laws for Coup-Makers
III. The Monarchy above the Military: Direct Royal Interventions against Military Juntas
PART III
IMPORTING CONSTITUTIONAL JUSTICE
8. Thailand's Post-Cold War Constitutions: Constitutions for the Judiciary
I. The 1997 Constitution: The Transformative 'Global South' Constitution
II. The 2007 Constitution: Juristocracy under US Inspiration?
III. The 2017 Constitution: Juristocracy and Military Dictatorship under Royal Command
9. The Rule of Law and Buddhist Kingship: Turning the Constitutional Court into a Substitute King
I. From the Rejection of the British Practice of the Royal Prerogative to the Creation of a Constitutional Court Ruling in the Name of the King
II. From US-Style Judicial Activism to 'Judicialisation': Transferring the King's Extra-Constitutional
Powers to the Constitutional Court
III. From Global Discourses on the Rule of Law and Good Governance to the Doctrine of Dharmaraja Governance
10. From Judicialisation at the King's Request to Juristocracy under Royal Command
I. Judicialisation at the King's Request: Practices of Direct and Indirect Royal Vetoes
II. More Judicialisation at the King's Request: The Constitutional Court Defines 'DKHS' and its Customs
III. Royal Constitutional Vetoes, Lèse-Majesté and 'DKHS': The Affirmation of the Royal Prerogative
11. Conclusion: Democracy with the King as Head of State: The Bricolage of Thai Constitutional Identity
I. Summary of the Book's Contribution: Bricolage as a Process and Method in Comparative Constitutional Law
II. Taking Textual Provisions Seriously: On the Royal Prerogative and Constitutional Conventions
III. Taking Local Doctrine Seriously: On the Power of Legal Ideas and the Use of Religion to Localise Legal Transplants
IV. Taking Constitutional Practices Seriously: On Political Precedents and the Performativity of Constitutional
Story-telling
V. Epilogue: Thailand and the Possibility of Decentring Comparative Constitutional Law
I. The Purpose and General Argument of the Book: Why the Thai Constitution Matters
II. The Issue of Royal Prerogatives in a Constitutional Monarchy: Text, Conventions and Doctrines
III. Sacred Monarchy vs. the Rule of Law: The Interplay of Law and Religion Mediated through Kingship
IV. Constitutional Bricolage: The Indeterminacy of Legal Transplants and their Political Re-assignments
V. Outline of the Chapters
PART I
IMPORTING THE MODERN CONSTITUTION
2. Siam's First Constitutions: The Rise and Fall of the Sacred Monarchy
I. The Hindu-Khmer Origins of the Traditional Constitution
II. The 1889, 1926 and 1932 Draft Constitutions: The Bonapartist and British Tropes
III. The 1932 Constitutions: The Soviet/Chinese and Prussian/Japanese Influences
3. Legal Positivism and Buddhist Kingship: Establishing the King as the Source of the Constitution
I. Hindu-Buddhist Theories: The Devaraja and Dharmaraja Kings
II. The European Influence: Importing Doctrines of Royal Absolutism
III. From the European Doctrine of 'Royal Octroy' to the King's Granted Rattathammanun
4. From the Sacred Monarchy to the Sacred Constitution
I. Royal Despotism, Theocracy and Sacred Law
II. Royal Reforms: The Westernisation of Law and Kingship
III. Royal Vetoes and Amnesties versus the Sacred Constitution
PART II
IMPORTING THE STATE OF EMERGENCY
5. Thailand's Cold War Constitutions: Constitutions for the Military
I. The 1947-1949 Constitutions: The Royalist Restoration and the Rejection of the British Model
II. The 1959, 1968 and 1972 Constitutions: Military Dictatorship and the Gaullist Inspiration
III. The 1974-1991 Constitutions: The US Influence on Military Dictatorship under Royal Command?
6. Revolutionary Legality and Buddhist Kingship: Theorising the King's Extra-Constitutional Powers in Times of Crisis
I. From Kelsen's Revolutionary Legality to Thai-Style Democracy
II. From Bagehot's Three Conventional Powers of the Monarch to the Invention of Thai Constitutional Customs
III. Revolutionary Legality Revised: The Doctrine of Shared Sovereignty between the King, the Military and the People
7. From Military Dictatorship to Military Dictatorship under (Sacred) Royal Command
I. The Monarchy against the Military: Practices of Royal Constitutional Veto
II. The Monarchy on Top of the Military: Royally Sanctioned Military Coups and Amnesty Laws for Coup-Makers
III. The Monarchy above the Military: Direct Royal Interventions against Military Juntas
PART III
IMPORTING CONSTITUTIONAL JUSTICE
8. Thailand's Post-Cold War Constitutions: Constitutions for the Judiciary
I. The 1997 Constitution: The Transformative 'Global South' Constitution
II. The 2007 Constitution: Juristocracy under US Inspiration?
III. The 2017 Constitution: Juristocracy and Military Dictatorship under Royal Command
9. The Rule of Law and Buddhist Kingship: Turning the Constitutional Court into a Substitute King
I. From the Rejection of the British Practice of the Royal Prerogative to the Creation of a Constitutional Court Ruling in the Name of the King
II. From US-Style Judicial Activism to 'Judicialisation': Transferring the King's Extra-Constitutional
Powers to the Constitutional Court
III. From Global Discourses on the Rule of Law and Good Governance to the Doctrine of Dharmaraja Governance
10. From Judicialisation at the King's Request to Juristocracy under Royal Command
I. Judicialisation at the King's Request: Practices of Direct and Indirect Royal Vetoes
II. More Judicialisation at the King's Request: The Constitutional Court Defines 'DKHS' and its Customs
III. Royal Constitutional Vetoes, Lèse-Majesté and 'DKHS': The Affirmation of the Royal Prerogative
11. Conclusion: Democracy with the King as Head of State: The Bricolage of Thai Constitutional Identity
I. Summary of the Book's Contribution: Bricolage as a Process and Method in Comparative Constitutional Law
II. Taking Textual Provisions Seriously: On the Royal Prerogative and Constitutional Conventions
III. Taking Local Doctrine Seriously: On the Power of Legal Ideas and the Use of Religion to Localise Legal Transplants
IV. Taking Constitutional Practices Seriously: On Political Precedents and the Performativity of Constitutional
Story-telling
V. Epilogue: Thailand and the Possibility of Decentring Comparative Constitutional Law
