THE GLORIOUS REVOLUTION AND THE CONTINUITY OF LAW. By Richard S. Kay. (1) The Catholic University of America Press. 2014. Pp. xi + 304. $59.95 (cloth).
This book by Richard Kay is a joy to read. It is a study of England's Glorious Revolution in the late seventeenth century written by an American law professor with a well-known expertise in constitutional law and constitutional interpretation. (3) It works on at least three levels. Firstly, there is the legal history side of the book. Kay started work on this book in the early 1990s, so what you read is the culmination of nearly a quarter-century of research, reading and thought. Those who have little idea of the events leading up to England's Glorious Revolution will learn all the basics. Meanwhile, those who had a pretty solid understanding will learn new things. Kay is good on the importance of oaths back then. Kay is good on how terribly King James II played his hand; how a Catholic King in an overwhelmingly Protestant kingdom made mistake after mistake after mistake until it was too late and he had to flee. Kay is good on the Convention Parliament. Kay is good on the lurking background importance of Cromwell and the events of 1648-1660 to what would happen some three decades later. Kay even helped clear up for me a vague confusion I had never really bothered to sort out. Why is it that you sometimes would read of some event linked to the Glorious Revolution, say the Declaration of Rights, as having taken place in 1688 and at other times see that same event being dated to 1689? It was the calendar and from when the start of the new year is dated. While the French had moved over to the more accurate Gregorian calendar in the 1580s, the English were still on the Julian (and would remain on the Julian till the 1750s). Under the latter, the start of the new year was then March 25, not January 1. In addition, by the time of the events of the Glorious Revolution there was a ten day difference between the two calendars. Taken together, some of what we today would say had happened in 1689 would back then in England (or in the 13 colonies, for that matter) be said to have taken place in 1688.
There is a second side to this book, however, because as Kay makes clear "[t]his book is ... a legal history of the Revolution" (p. ix, emphasis in the original). Yes, the history matters, but it matters to Kay because of the way it illustrates just how important law was to the revolutionaries and, relatedly, how crucial legal justifications for their actions were to them. This is not surprising, as Kay's very first sentence in the book, in the Preface, is: "I came to the study of the Glorious Revolution of 1688-89 from the study of constitutional law" (p. ix). Likewise, it is not surprising that this book can also be thought of as an extended study of constitutional law issues. There are questions related to parliamentary sovereignty. There are questions about what constitute the sources of law. There are all the issues thrown up by the tensions between change and continuity, between those who appeal to theory and those to history, and between the exhilarating attraction of wide-open unconstrained scope for action, as opposed to the comforting safety provided by the constraints of the established law. There is even much discussion of the conduct of judges in resolving these issues, which tangentially brings up all the issues of interpretation which constitutional law scholars ponder on a daily basis. There are all these, plus consideration of the Rule of Law's consistency with revolutionary change, and more. Despite the focus on events in England nearly 330 years ago, this is very much a book for those interested in contemporary constitutional law.
Then there is the jurisprudential side of this book. On a third level, you can read this book as an exercise in applied legal philosophy. "What counts as law?" is a constant refrain. So too is the desire to mask revolutionary change, to finesse it and pretend that there is continuity, when pretty much everyone knows that there is not. There is the persistence of legal argument in the midst of bootstrap operations at the start of new legal regimes. And perhaps most perplexingly, there is the fundamental issue of how to understand what H.L.A. Hart dubbed "the rule of recognition." (4)
I came to read Kay's book as a law professor who teaches both constitutional law and jurisprudence courses in Australia. Before that, I worked and taught broadly similar courses in New Zealand, Canada, Hong Kong and about the United Kingdom (while living in Hong Kong). I mention that because, on the straightforward plane of knowing the Westminster constitutional model, it struck me that Kay knows more than most British, Canadian, Australian and New Zealand legal academics. He certainly knows the Westminster system inside and out.
In the rest of this short review, therefore, I will play to my strengths and focus on the second and third sides to this book, the aspects related to constitutional law and to legal philosophy. I will pick out just three themes raised in Kay's book, note why these three were important back in the late 1600s in England, and then consider them more widely in today's world.
FICTIONS AND FINESSING
The revolutionaries in 1688 were overwhelmingly not outsiders. They had a big stake in the existing system. Core religious differences with King James II, and the birth of a son of his sure to be raised a Catholic, led the makers of the Revolution to act. Yet the failed experiment with Cromwell was within living memory for many of these actors. It worried almost all of them. As Kay puts it, "By 1688, almost everyone had learned that contempt for the law could lead to disaster" (p. 56, internal footnote omitted). Accordingly, there was "a powerful tendency to favor, so far as practicalities allowed, the apparently legal over the openly revolutionary" (p. 56).
With the arrival of William and Mary, James II's flight to France, and a new but precarious equilibrium beginning to form, the Convention Parliament met during the interregnum. Yet the legal status of this Convention was itself dubious, highly dubious. Indeed the calling, meeting and...