Legal Revolutions: Six Mistakes about Discontinuity in the Legal Order

Abstract:     
A revolution (in the legal sense of the term) occurs when chains of legal dependence rupture - causing one legal system to be replaced by a different and incommensurable legal system. For example, before the French Revolution chains of legal dependence ultimately led to Louis XVI, but after this revolution they led to the National Assembly (or the people of France it represented).

The very possibility of revolutions depends upon laws being structured into legal systems in this fashion. And yet, despite substantial academic interest in revolutions, there has been a reluctance to examine the structure that makes them possible. The goal of this Article is to begin to fill this gap by examining six mistakes in reasoning about revolutions that occur when the structure of legal systems is ignored. My discussion focuses on concrete examples of these mistakes, drawn from a wide variety of sources, including the writings of Akhil Amar, the Supreme Court of Pakistan's 1958 decision in State v. Dosso, the jurisprudence of John Austin, and recent criticisms of Bush v. Gore.

Keywords: Revolution, Hans Kelsen, H.L.A. Hart, John Austin, Akhil Amar, Bush v. Gore, Sovereignty, Logic, Constitutional Amendment, Legal Realism

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