Unconstitutional legality

Thesis

The thesis explores the apparently paradoxical phenomenon of unconstitutional legality. This is a state of affairs in which acts that contravene constitutional provisions are treated by courts and other legal officials as legally valid, either temporarily or permanently. The thesis examines two principal doctrines through which courts have legally validated such acts: the doctrine of state necessity and the doctrine of revolutionary legality.

The first three chapters focus on the doctrine of state necessity, examining how courts in various jurisdictions conferred legal validity to unconstitutional actions undertaken to preserve the state or avert constitutional collapse. These chapters trace the evolution of the doctrine from its early roots in executive-prerogative powers and to an extra-legal natural-law principle of necessity to its eventual legal formalisation. The thesis proposes a theoretical reconfiguration of the doctrine of state necessity based on the concept of equity as its most coherent and normatively defensible conceptual and theoretical foundation.

The following four chapters turn to the problem of revolutionary change, understood as any constitutional change in violation to the written constitution. Through the analysis of case law from across various legal systems, the thesis explores how courts have invoked the doctrines of successful or acclaimed revolution to determine whether they should grant legal recognition to constitutions that have been overthrown and replaced with new ones. The thesis proceeds with the examination of the theoretical grounds presented in these decisions, based primarily in Hans Kelsen’s Pure Theory of Law and its principle of effectiveness. It further assesses how revolutionary changes seem to challenge the supremacy and continuity of constitutional law, questioning whether revolutions destroy or transform and coexist with pre-existing legal orders. The thesis concludes by outlining a jurisprudence of revolutionary change, a ‘law of revolutions’, which seeks to ground unconstitutional changes to the constitution within a broader legal and theoretical framework.

Overall, the work seeks to illuminate how the study of deviations from constitutions offers important insights into the inner workings of legality and to the nature and dynamics of constitutional authority.

Authors: Peftinas, A

• Alternative title: The doctrine of state necessity and revolutionary change
• DOI: 10.5287/ora-yrb4job6m
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: jurisprudence; revolutions; doctrine of necessity; constitutional theory; emergencies
• Subjects: Constitutional law; Legal philosophy