Revolutionary breach of legal continuity

Last updated

Revolutionary breach of legal continuity is a concept in English constitutional law, which rationalises the historic English behavior when one King (or regime) was deposed and a de facto ruler was recognised as the new de jure monarch (or republican authority). More generally it is any process, unauthorised by an existing legal order, which results in the creation of a new legal order; whether or not the revolutionary change is brought about by violence. A technical breach of continuity might happen when the former constitutional arrangement is so inefficient that there is not even a practical legal way to amend it. [1] [2]

The most recent successful revolutionary breach in England and Wales, Scotland and Northern Ireland was the Glorious Revolution of 1688–1689 which replaced King James II of England and Ireland (King James VII of Scotland) with the joint sovereignty of his son-in-law King William III of England (King William II of Scotland) and daughter Queen Mary II of England (and Scotland).

The United States Declaration of Independence is another example, as it had no basis in the previous legal order which had governed the Thirteen Colonies and represented the start of a new legal order. A few years later the replacement of the Articles of Confederation with the United States Constitution was a technical breach of continuity, which did not result in a civil war only because of the very reason of the breach: the first USA defined by the Articles had a weak central government that therefore had no means to defend itself.

There was an attempted revolutionary breach in the whole of Ireland in 1919, when the First Dáil, a gathering of persons elected to the United Kingdom House of Commons in 1918, declared the Irish Republic, without any authority to do so within the terms of the United Kingdom's legal order. The subsequent Anglo-Irish Treaty and steps taken under it gave the Irish Free State legitimacy within the United Kingdom legal order, but they delegitimised it for those who regarded the applicable legal order to be that proclaimed in 1919.

When the present constitution of Ireland was adopted the amending formula of the Irish Free State constitution was deliberately not used, despite having the necessary support, so the new constitution would represent a revolutionary breach and derive its legitimacy from purely Irish sources.[ citation needed ]

Similar steps were taken so the Indian people became the source of legitimacy for the republican constitution of India. The republican constitution replaced the one authorised by the United Kingdom at the time of independence but did not comply with its provisions for amendments.

The term has also been applied to regime change following a military coup in Commonwealth of Nations members such as Pakistan and Nigeria.

See also

Related Research Articles

<span class="mw-page-title-main">Constitutional monarchy</span> Type of monarchy in which power is restricted by a constitution

A constitutional monarchy, parliamentary monarchy, or democratic monarchy is a form of monarchy in which the monarch exercises their authority in accordance with a constitution and is not alone in decision making. Constitutional monarchies differ from absolute monarchies in that they are bound to exercise powers and authorities within limits prescribed by an established legal framework.

A monarchy is a form of government in which a person, the monarch, is head of state for life or until abdication. The political legitimacy and authority of the monarch may vary from restricted and largely symbolic, to fully autocratic, and can expand across the domains of the executive, legislative, and judicial.

<span class="mw-page-title-main">Bill of Rights 1689</span> English civil rights legislation

The Bill of Rights 1689 is an Act of the Parliament of England that set out certain basic civil rights and clarified who would be next to inherit the Crown. It remains a crucial statute in English constitutional law.

<span class="mw-page-title-main">Law of the United Kingdom</span> Overview of the law of the United Kingdom

The United Kingdom has four legal systems, each of which derives from a particular geographical area for a variety of historical reasons: English and Welsh law, Scots law, Northern Ireland law, and, since 2007, purely Welsh law, as a result of the passage of Welsh devolution and the Government of Wales Act 2006 by Parliament. There have been multiple calls from both Welsh academics and politicians however for a Wales criminal justice system.

<span class="mw-page-title-main">History of the constitution of the United Kingdom</span>

The constitution of the United Kingdom is an uncodified constitution made up of various statutes, judicial precedents, convention, treaties and other sources. Beginning in the Middle Ages, the constitution developed gradually in response to various crises. By the 20th century, the British monarchy had become a constitutional and ceremonial monarchy, and Parliament developed into a representative body exercising parliamentary sovereignty.

A royalist supports a particular monarch as head of state for a particular kingdom, or of a particular dynastic claim. In the abstract, this position is royalism. It is distinct from monarchism, which advocates a monarchical system of government, but not necessarily a particular monarch. Most often, the term royalist is applied to a supporter of a current regime or one that has been recently overthrown to form a republic.

In political science, a constitutional crisis is a problem or conflict in the function of a government that the political constitution or other fundamental governing law is perceived to be unable to resolve. There are several variations to this definition. For instance, one describes it as the crisis that arises out of the failure, or at least a strong risk of failure, of a constitution to perform its central functions. The crisis may arise from a variety of possible causes. For example, a government may want to pass a law contrary to its constitution; the constitution may fail to provide a clear answer for a specific situation; the constitution may be clear but it may be politically infeasible to follow it; the government institutions themselves may falter or fail to live up to what the law prescribes them to be; or officials in the government may justify avoiding dealing with a serious problem based on narrow interpretations of the law. Specific examples include the South African Coloured vote constitutional crisis in the 1950s, the secession of the southern U.S. states in 1860 and 1861, the dismissal of the Australian federal government in 1975 and the 2007 Ukrainian crisis. While the United Kingdom of Great Britain and Northern Ireland does not have a written constitution, it is deemed to have an unwritten one, and issues and crises in the UK and its constituent countries are described as constitutional crises.

The abolition of monarchy and anti-royalism is a legislative or revolutionary movement to abolish monarchical elements in government, usually hereditary.

The Convention Parliament was a parliament in English history which, owing to an abeyance of the Crown, assembled without formal summons by the Sovereign. Sir William Blackstone applied the term to only two English Parliaments, those of 1660 and 1689, but some sources have also applied the name to the parliament of 1399.

Republicanism in the United Kingdom is the political movement that seeks to replace the United Kingdom's monarchy with a republic. Supporters of the movement, called republicans, support alternative forms of governance to a monarchy, such as an elected head of state.

In the 1760s William Blackstone described the Fundamental Laws of England in Commentaries on the Laws of England, Book the First – Chapter the First : Of the Absolute Rights of Individuals as "the absolute rights of every Englishman" and traced their basis and evolution as follows:

<span class="mw-page-title-main">Claim of Right 1689</span> Kingdom of Scotland legislation

The Claim of Right is an Act passed by the Convention of the Estates, a sister body to the Parliament of Scotland, in April 1689. It is one of the key documents of United Kingdom constitutional law and Scottish constitutional law.

In political philosophy, the right of revolution is the right or duty of a people to "alter or abolish" a government that acts against their common interests or threatens the safety of the people without cause. Stated throughout history in one form or another, the belief in this right has been used to justify various revolutions, including the American Revolution, French Revolution, the Russian Revolution, and the Iranian Revolution.

<span class="mw-page-title-main">Formation of the United Kingdom of Great Britain and Northern Ireland</span> Territorial evolution of the UK

The formation of the United Kingdom of Great Britain and Northern Ireland has involved personal and political union across Great Britain and the wider British Isles. The United Kingdom is the most recent of a number of sovereign states that have been established in Great Britain at different periods in history, in different combinations and under a variety of polities. Historian Norman Davies has counted sixteen different states over the past 2,000 years.

<span class="mw-page-title-main">Constitution of the United Kingdom</span> Principles, institutions and law of political governance in the United Kingdom

The constitution of the United Kingdom or British constitution comprises the written and unwritten arrangements that establish the United Kingdom of Great Britain and Northern Ireland as a political body. Unlike in most countries, no attempt has been made to codify such arrangements into a single document, thus it is known as an uncodified constitution. This enables the constitution to be easily changed as no provisions are formally entrenched; the Supreme Court of the United Kingdom recognises that there are constitutional principles, including parliamentary sovereignty, the rule of law, democracy, and upholding international law.

<span class="mw-page-title-main">Convention Parliament (1689)</span> Parliament of England held in 1689

The English Convention was an assembly of the Parliament of England which met between 22 January and 12 February 1689 and transferred the crowns of England and Ireland from James II to William III and Mary II.

<span class="mw-page-title-main">Parliamentary sovereignty in the United Kingdom</span> Constitutional principle of the United Kingdom

Parliamentary sovereignty is an ancient concept central to the functioning of the constitution of the United Kingdom but which is also not fully defined and has long been debated. Since the subordination of the monarchy under parliament, and the increasingly democratic methods of parliamentary government, there have been the questions of whether parliament holds a supreme ability to legislate and whether or not it should.

The rule of law is one of the longest established common law fundamental principles of the governance of the United Kingdom, dating to Magna Carta of 1215, particularly jurisprudence following its late 13th century re-drafting. It as a minimum subjects an otherwise absolute monarch (executive) and all free people within its jurisdictions, primarily those of England and Wales, Scotland and Northern Ireland to legal doctrines known as the general principles of law. It has evolved to work only alongside equal application of the law to all free people 'equality before the law' and within the framework of the constitutional monarchy supports the legal doctrine of parliamentary sovereignty. Exactly what it entails beyond this and the way that different aspects of the rule of law principle are applied, depends on the specific situation and era.

<span class="mw-page-title-main">Glorious Revolution in Scotland</span> Overview of the Glorious Revolutions impact in Scotland

The Glorious Revolution in Scotland refers to the Scottish element of the 1688 Glorious Revolution, in which James VII was replaced by his daughter Mary II and her husband William II as joint monarchs of Scotland and England. Prior to 1707, the two kingdoms shared a common monarch but were separate legal entities, so decisions in one did not bind the other. In both countries, the Revolution confirmed the primacy of Parliament over the Crown, while the Church of Scotland was re-established as a Presbyterian rather than Episcopalian polity.

Parliamentary sovereignty, also called parliamentary supremacy or legislative supremacy, is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over all other government institutions, including executive or judicial bodies. It also holds that the legislative body may change or repeal any previous legislation and so it is not bound by written law or by precedent.

References

  1. Kay, Richard S. (2014). The Glorious Revolution and the Continuity of Law. Catholic University of America Press. doi:10.2307/j.ctt13wztrp. ISBN   9780813226873. JSTOR   j.ctt13wztrp.
  2. "21 Revolutions and Continuity of Law Get".