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Lawyers usually describe a revolution as a change in a
constitutional order not authorized by law. From this perspective,
to speak of a 'lawful' or an 'unlawful' revolution would seem to
involve a category mistake. However, since at least the 19th
century, courts in many jurisdictions have had to adjudicate claims
involving questions about the extent to which what is in fact a
revolutionary change can result in the creation of a legally valid
regime. In this book, the authors examine some of these judgments.
Adjudicating Revolution includes, first, cases in which courts
decide to recognize the actions of a de facto regime under a
doctrine of necessity, with the objective of maintaining public
order. Second, cases where courts directly confront the question of
whether a revolution has resulted in the creation of a genuinely
new constitutional order. Finally, cases in which courts are asked
by state officials to recognize, in advance, the validity of
otherwise revolutionary changes (i.e. the irregular creation of a
new constitution) proposed by state officials. The book examines,
from a theoretical and comparative perspective, judgments from
North and Latin America, Europe, Asia, and Africa. Placing the
cases in their historical and political context, the authors
provide an understanding of key moments in the constitutional
history of the relevant jurisdictions. The resulting analysis will
be of interest to academics and graduate students of comparative
constitutional law and constitutional theory, political science,
and related disciplines.
The Glorious Revolution and the Continuity of Law explores the
relationship between law and revolution. Revolt-armed or not-is
often viewed as the overthrow of legitimate rulers. Historical
experience, however, shows that revolutions are frequently
accompanied by the invocation rather than the repudiation of law.
No example is clearer than that of the Glorious Revolution of
1688-89. At that time the unpopular but lawful Catholic king, James
II, lost his throne and was replaced by his Protestant son-in-law
and daughter, William of Orange and Mary, with James's attempt to
recapture the throne thwarted at the Battle of the Boyne in
Ireland. The revolutionaries had to negotiate two contradictory but
intensely held convictions. The first was that the essential role
of law in defining and regulating the activity of the state must be
maintained. The second was that constitutional arrangements to
limit the unilateral authority of the monarch and preserve an
indispensable role for the houses of parliament in public
decision-making had to be established. In the circumstances of
1688-89, the revolutionaries could not be faithful to the second
without betraying the first. Their attempts to reconcile these
conflicting objectives involved the frequent employment of legal
rhetoric to justify their actions. In so doing, they necessarily
used the word "law" in different ways. It could denote the specific
rules of positive law; it could simply express devotion to the
large political and social values that underlay the legal system;
or it could do something in between. In 1688-89 it meant all those
things to different participants at different times. This study
adds a new dimension to the literature of the Glorious Revolution
by describing, analyzing and elaborating this central paradox: the
revolutionaries tried to break the rules of the constitution and,
at the same time, be true to them.
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