Athanasios Peftinas – Law in Revolutions and the Law of Revolutions

This is a seminar organised by the Edinburgh Legal Theory Research Group. The speaker Athanasios Peftinas, from the University of Oxford, will be presenting his paper on Law in Revolutions and the Law of Revolutions.

Our seminars consist of a 30-minute presentation given by the author, followed by a 60 to 90-minute Q&A. This IS NOT a pre-read event, BUT the paper will be circulated beforehand through our mailing list. To subscribe, please send an email to edinburgh.legal.theory@gmail.com.

Author bioAthanasios Peftinas is a DPhil candidate in Law at the University of Oxford. His research focuses on constitutional theory and legal philosophy, particularly the concept of ‘unconstitutional legality’ and judicial responses to revolutionary legal change.

AbstractIn 1958, the President of Pakistan promulgated a ‘Proclamation’ by which he abrogated the Constitution, dissolved the Parliament, dismissed the government and declared martial law. He then enacted an ‘order’, the purported effect of which was the validation of laws that were in force before the Proclamation, except from the Constitution. Six days later, the Supreme Court would hear a case concerning certain constitutional rights under the (‘abrogated’) Constitution. The Court had to determine, as a preliminary question, whether the Constitution was still in force or had been terminated and replaced by the President’s Order. The Supreme Court held that a successful revolution or coup is a legal method of changing a Constitution. Where a revolution is successful, it satisfies the test of efficacy and becomes a basic law-creating fact. After a revolution, not only the constitution but the whole legal order is terminated, and a new one is created. Thus, the Court concluded that the President’s Order amounted to a new Constitution that initiated a new legal order independent of the former one.

The decision and subsequent similar ones sparked and inspired a voluminous literature, not least for its legal-philosophical significance. The Supreme Court presented Kelsen’s Pure Theory of Law as the theoretical basis for its judgment, and in particular two key ideas: a) that the continuous existence of a legal order rests on the continuous existence or lawful change of its constitution; and b) that the efficacy of a legal order is a condition for its validity. Legal philosophers took differing views on a number of questions: Should judges be able to determine the validity of a legal order, or does it constitute a ‘meta-legal’ question, beyond and outside law? If they do, could Kelsen’s ‘descriptive’ theory of positive law be applied by courts? If it can, did the Court misinterpret Kelsen? If it did not, was Kelsen’s theory correct in determining when a ‘legal revolution’ takes place and what its implications are for the legal order?

The discussion ultimately culminated in the final question, and Kelsen’s critics attempted to demonstrate the inadequacy, paradoxes or counter-intuitiveness of Kelsen’s analysis of revolutions. Despite the careful analyses, refinements or counter-suggestions to Kelsen’s model, the (arguably) crucial questions were left unanswered: is there law in revolutions? Where does law rest if not in the constitution, and what are the implications for constitutional law? Is there law regulating revolutionary change, i.e. when a revolution amounts to a law-creating fact?

Part of the failure in addressing and answering these questions, I will argue, is because legal theory failed to accommodate the approach offered by constitutional theory for the same matters, namely, the issues of constituent power and sovereignty, and how they relate to legal order and legality. In my paper, I seek to bridge these two approaches into one theory of revolutionary legality.