The Theory of the Dual State Revisited : Dual Constitutionalism in Thailand, Turkey and Pakistan

In Ernst Fraenkel’s account, the Dual State is characterized by two relatively autonomous spheres: the normative and the prerogative one (or what some have called the “deep state”). In the prerogative State, the State acts with discretion and its actions are not subject to judicial review. Most constitutions are characterized by coexisting liberal and authoritarian layers of normativity. In times of crisis, the authoritarian “deep constitution” may take over the normative constitution, with the courts starting to act in a “schizophrenic” manner. When authoritarian constitutions are defined as having “the form of a constitution, but without fully articulated institutions of limited government”, limited government is wrongfully associated with liberal constitutions and miss the fact that institutions of limited government always coexist with authoritarian “deep” features. The comparative cases of Thailand, Pakistan and Turkey fully exhibit such constitutional fluidity.