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Philosophy of LawCollected Essays Volume IV$
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John Finnis

Print publication date: 2011

Print ISBN-13: 9780199580088

Published to Oxford Scholarship Online: September 2011

DOI: 10.1093/acprof:oso/9780199580088.001.0001

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Revolutions and Continuity of Law

Revolutions and Continuity of Law

(p.407) 21 Revolutions and Continuity of Law
Philosophy of Law

John Finnis

Oxford University Press

This chapter is written in the context of judicial appeals to legal theory in the wake of coups d'état or revolutions in the Commonwealth. It considers whether every illegal or unconstitutional act amounts to a change in the constitution and the identity of the legal order, and whether there can be change in that identity otherwise than by violation of some rule. It looks at the problem of coups d'état both in English statute law and in Kelsen and Ross and finally in Hart and Raz, noting the atemporal character of Hart's rule of recognition. The problem of when rules ‘cease to exist’ in considered in the light of law about the effects of repeal of statutes, and of fundamental ‘principle of continuity’. Consideration of whether the legal system is a set of rules (or other normative standards) of persons and institutions leads into more general reflections on method in jurisprudence, and (drawing on Voegelin) the dependence of legal theory on history to identify its subject matter (the group that has law).

Keywords:   revolutions, coups d'état, identity of the legal order, legal system, Kelsen, Ross, Hart, Raz, repeal, principle of continuity

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