Restraining arbitrary power in Thailand: the sociological approach in examining the rule of law

Abstract

The primary objective of this thesis is to develop and use a new framework to examine the existence of the rule of law in Thailand. Many writers believe that Thailand is a nation which lacks sufficient constraint on the exercise of arbitrary power. These writers often blame the judiciary and other key institutions for not curbing corruption and other forms of abuses of power. While each writer adopts a different approach in analysing the rule of law, their views are almost always taken out of context and do not tell the entire story.

This is considered as inadequate, as these views often fail to appreciate the core sociological aspects of the rule of law. It is these core sociological aspects which are considered as essential to understanding the way the rule of law operates in Thailand. Without a proper understanding of the traditions and culture of Thailand, it is misguiding to simply transplant the classic view of the rule of law and compare its key institutions in an ad hoc way. History has shown that more often than not the process generally does not work.

A more rigorous analysis is required. This thesis explains and adopts the new approach in examining the rule of law in Thailand. This approach examines the key influences of the rule of law in light of its sociological context. It looks beyond the judiciary and other independent institutions and into various areas of social science. Particularly, the level of independence and performance of each major court in Thailand is examined, followed by a comprehensive evaluation of selected independent constitutional institutions.

These institutions are then considered in light of other sociological influences on the rule of law in Thailand. Such influences include: social values, political culture, religion, the King and the military. Other external influences such as Asian values and globalisation are also considered. These influences are something that has never been explored before. In saying this, the new approach – the sociological methodology differs considerably from past attempts to analyse the existence of the rule of law in Thailand and concludes contrary to popular belief.