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Richard S. Kay, The Glorious Revolution and the Continuity of Law

Richard S. Kay, The Glorious Revolution and the Continuity of Law avx010 AJCLAW_avx010.indd 724 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 65 RichaRd S. k y a , t he g LoRiouS RoL ev ution and the c ontinuity of Lwa (The Catholic University of America Press, 2014)† Reviewed by Nicolás Figueroa García-Herreros* The problem of maintaining legal continuity during moments of revolutionary political change has been a constant concern of legal scholars. Take, for instance, the different ways in which two of the twentieth century’s towering figures of constitutional theory—Hans Kelsen and Carl Schmitt—dealt with this problem. For Kelsen, a revo- lution is something that, in general terms, “occurs whenever the legal order of a community is nullified and replaced by a new order in an illegitimate way, that is in a way not prescribed by the first order itself.” There is not much we can learn from this definition regarding the possibility of enacting significant constitutional transformations by remaining within the boundaries imposed by the legal system and respecting its rules of constitutional change. However, Kelsen does throw light on a central aspect of the relationship between substantive political change and legal continuity, that is, the importance of the lat- ter for the legitimacy of the former. At http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png American Journal of Comparative Law Oxford University Press

Richard S. Kay, The Glorious Revolution and the Continuity of Law

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Publisher
Oxford University Press
Copyright
© The Author [2017]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.
ISSN
0002-919X
eISSN
2326-9197
DOI
10.1093/ajcl/avx010
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Abstract

avx010 AJCLAW_avx010.indd 724 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 65 RichaRd S. k y a , t he g LoRiouS RoL ev ution and the c ontinuity of Lwa (The Catholic University of America Press, 2014)† Reviewed by Nicolás Figueroa García-Herreros* The problem of maintaining legal continuity during moments of revolutionary political change has been a constant concern of legal scholars. Take, for instance, the different ways in which two of the twentieth century’s towering figures of constitutional theory—Hans Kelsen and Carl Schmitt—dealt with this problem. For Kelsen, a revo- lution is something that, in general terms, “occurs whenever the legal order of a community is nullified and replaced by a new order in an illegitimate way, that is in a way not prescribed by the first order itself.” There is not much we can learn from this definition regarding the possibility of enacting significant constitutional transformations by remaining within the boundaries imposed by the legal system and respecting its rules of constitutional change. However, Kelsen does throw light on a central aspect of the relationship between substantive political change and legal continuity, that is, the importance of the lat- ter for the legitimacy of the former. At

Journal

American Journal of Comparative Law – Oxford University Press

Published: Nov 13, 2017

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