Institutional Change and the Continuity of Law
18 Pages Posted: 2 Sep 2020 Last revised: 10 Sep 2020
Date Written: August 5, 2020
This essay will be part of a forthcoming special issue of the Connecticut Law Review dedicated to the work of my UConn colleague Richard Kay. This contribution offers reflections on Rick’s theoretical and historical scholarship on processes of institutional (and, by extension, constitutional) change. Despite the intense focus on law in this work, Rick's approach suggests a surprising ambivalence about law’s role in these processes. Part I of this essay discusses this ambivalence in relation to Rick's 2014 legal-historical monograph, The Glorious Revolution and the Continuity of Law. Rick’s analysis draws theoretical inspiration primarily (though hardly exclusively) from an Anglo-American tradition, based particularly on the work of H.L.A. Hart. I argue that Rick’s Hartian approach ultimately depends on a somewhat strained distinction between law and non-law in processes of change that does not map well onto the historical record that Rick otherwise cogently analyzes. Thus, as a supplement to his Hartian framework, Rick introduces the distinction between the “axiological” underpinnings of a revolution (be they social, political, or cultural) and its “legal” manifestation, i.e., the replacement of an old rule of recognition with a new one. In doing so, Rick’s analysis begins to point us toward more complex dynamics in processes of change that I would argue are more robustly captured by an alternative framework, one drawn from a more French tradition. I am referring to the institutional theory of Maurice Hauriou, who was among the greatest administrative law scholars of the late-nineteenth and early-twentieth centuries. Hauriou's theory emphasized how law is in fact intimately bound up with processes of institutional foundation and change rather than being external to them. Part II of this essay explores how Hauriou’s approach could reinforce Rick’s work in this area, using the example of Rick’s seminal 2011 article, Constituent Authority, to demonstrate the potential connections. The key point of contact between Rick's position and that of Hauriou, I argue, is a shared rejection of a position, ultimately championed by Carl Schmitt, which viewed law primarily as a question of existential power (or, as Hauriou put it, as "an attack that has succeeded"). Part III of this essay then returns to Rick’s analysis of the Glorious Revolution, arguing that the effort of its protagonists to retain the language of law and to operate within its forms was a key factor in differentiating their ultimately successful and durable process of revolutionary change from other historical examples that proved more fragile. This, I would suggest, is a vindication of Hauriou’s central insight about the crucial role of law in allowing such change to achieve legitimacy and durable institutionalization over time.
Keywords: Richard Kay, Glorious Revolution, H.L.A. Hart, Maurice Hauriou, Carl Schmitt, Institutional Change, Institutionalist Theory of Law
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