Adjudicating Revolution: Courts and Constitutional Change

Lawyers define a revolution as a change in constitutional order not authorized by law. This book examines judgments from courts in many jurisdictions that have had to adjudicate claims involving questions about the extent to which a revolutionary change can result in the creation of a legally valid regime. It includes cases where courts recognize the actions of a de facto regime under a doctrine of necessity, confront the question of whether a revolution has resulted in the creation of a new constitutional order, and are asked to recognize the validity of otherwise revolutionary changes proposed by state officials. The analysis will be of interest to academics and graduate students of comparative constitutional law and constitutional theory, political science, and related disciplines.

Format: Hardback
Length: 256 pages
Publication date: 21 June 2022
Publisher: Edward Elgar Publishing Ltd

Lawyers often define a revolution as a significant shift in a constitutional order that goes against the legal framework. From this viewpoint, it seems inappropriate to categorize a revolution as either "lawful" or "unlawful." However, since at least the 19th century, courts in various jurisdictions have been tasked with resolving disputes related to the extent to which a revolutionary change can lead to the establishment of a legally valid regime. This book delves into several such judgments.

The first section of the book explores cases where courts decide to acknowledge the actions of a de facto regime under the doctrine of necessity, with the primary aim of preserving public order. These cases involve situations where a legitimate government has been overthrown or incapacitated, leaving a void that necessitates the recognition of a temporary authority to maintain stability. The authors analyze these judgments from a theoretical and comparative perspective, examining the legal frameworks and historical contexts of the relevant jurisdictions.

The second section of the book focuses on cases where courts directly confront the question of whether a revolution has resulted in the creation of a genuinely new constitutional order. These cases involve situations where a revolutionary movement has led to significant changes in the political landscape, including the adoption of a new constitution or the establishment of a new government. The authors examine these judgments to assess whether the new constitutional arrangements are legitimate and whether they comply with the principles of constitutional law.

The third section of the book involves cases where courts are asked by state officials to recognize, in advance, the validity of otherwise revolutionary changes proposed by state officials. These cases involve situations where a government is seeking to introduce significant constitutional reforms without following the customary legal procedures. The authors analyze these judgments to assess whether the proposed changes are constitutional and whether they comply with the principles of democratic governance.

The book examines judgments from North and Latin America, Europe, Asia, and Africa, placing the cases in their historical and political context. The authors provide an insightful understanding of key moments in the constitutional history of the relevant jurisdictions.

This comprehensive analysis will be of interest to academics and graduate students studying comparative constitutional law, constitutional theory, political science, and related disciplines. The book offers valuable insights into the complex dynamics of revolution, constitutional change, and the role of courts in adjudicating the legitimacy of political regimes.

Dimension: 234 x 156 (mm)
ISBN-13: 9781788971324