This contribution offers reflections on Richard Kay’s theoretical and historical scholarship regarding processes of institutional (and, by extension, constitutional) change. The focus here is on Kay’s 2014 legal-historical monograph, The Glorious Revolution and the Continuity of Law. Kay’s analysis draws theoretical inspiration primarily (though hardly exclusively) from an Anglo-American tradition, based particularly on the work of H. L. A. Hart. This Essay argues that Kay’s Hartian approach ultimately depends on a somewhat strained distinction between law and non-law in processes of change that does not map well onto the historical record that Kay otherwise cogently analyzes. Kay is forced, therefore, to supplement his Hartian framework with a distinction between the “axiological” underpinnings of a revolution (be they social, political, or cultural) and its “legal” manifestation, i.e., the replacement of an old rule of recognition with a new one. In doing so, Kay’s analysis begins to point toward more complex dynamics of change that this Essay argues are more robustly captured by an alternative theoretical framework drawn from a more French tradition. Kay’s analysis resonates in particular with the institutional theory of Maurice Hauriou, who was also among the greatest administrative law scholars in France over the late-nineteenth and early-twentieth centuries. This Essay explores how Hauriou’s institutional theory could reinforce Kay’s work in this area, using the example of Kay’s seminal 2011 article, Constituent Authority, to demonstrate the potential connections. The Essay then returns to Kay’s analysis of the Glorious Revolution, arguing that the effort of its protagonists to retain the language of law and to operate within its forms was arguably a vindication of Hauriou’s central insight about the crucial role of law in allowing revolutionary change to achieve legitimacy and durable institutionalization over time.
Lindseth, Peter, "Institutional Change and the Continuity of Law" (2021). Connecticut Law Review. 474.