Under what circumstances can law enacted via procedures of dubious legal validity survive?

Question

There is a kingdom. During its history, the kingdom was ruled by many different regimes: absolute monarchy, constitutional monarchy, republicanism, tyrannical rule of usurpers, periods of anarchy, periods of foreign occupations, de-facto oligarchy, etc, etc. As a result, the kingdom's laws, coming from different periods of its history, have become inconsistent, overly convoluted, and overwhelmingly numerous: In many cases no one knew which law overruled which law and which law had even been validly enacted.

As a result, the kingdom's legislative and judical powers became grossly ineffective. Different forms of courts had to assemble to judge in different affairs; it wasn't clear which form was necessary in any given time. It become almost impossible to predict a court's ruling in any particular case and even worse, almost each ruling could be challenged as invalid under some obscure law. Similarily, it was unclear which body was needed to to pass any particular piece of legislation; in many cases the necessary legislative body was practically impossible to assemble ("Only King may decide in the matters of ..., but currently there is no King!") or the approprate body was considered, in practice, unable to pass any piece of legislation (for example because it required unanimity). Overlapping responsibilities of some of the bodies were not helping either. As a result, each newly passed legislation could be challenged and only contributed to the mess. This situation started to endanger the Kingdom's wellbeing, however was very profitable for legions of jurists.

Now, after years of a theoretical monarchy (with a constantly vacating throne because no one was able to claim it in such a way that couldn't be challenged and thus no one was even trying), a new sovereign finally appears... who doesn't wish to care about this convoluted legal system at all. She did have some claims to the throne, but many people had stronger claims and she could only become the Princess because some influential people saw her fit to end the chaos and placed her in power by less-than-legal means. By necessity, then, she embraces a relatively authoritarian ruling style. (Thus earning her a mocking nickname of "Empress" from her polical opponents.)

And she does attempt to fix the legal situation... in her way: She cuts the Gordian knot and orders her trusted men to start working on a brand new legal system, aimed at simplicity and consistency. Then she declares that all previous laws are now abolished and instead, only her laws are in power. This makes the Kingdom more efficient, but also leaves behind quite a few upset people: the legions of jurists who are cut from some of their income, as well as those who were interested in keeping the Kingdom paralysed.

Finally, the Empress is assassinated... and my question is, can her reform survive? The opponents of the "Empress' illegitimate new order" do have a strong argument: Even if she had been an undoubtedly valid Princess (she hadn't), she would still be unable to simply abolish all previous laws, as the Crown had not had the power over some of these laws (because of reasons outlined above). And as we know, the juridical dogma is that no law can be enacted or abolished except by means prescribed by other appropriate laws).

What would it take for her reform to survive her death? Such a reform was clearly necessary for the Kingdom's wellbeing and maybe even survival... Yet such a reform was practically impossible to be passed through 100% legal means. Given there are many people happy with the reform and many unhappy as well, what would it take for this such a reform to survive and what would it take for it to be removed from effect?

EDIT: People ask how many (powerful) people were satisfied with the reforms and how many were opposing them.

Well, the Empress did leave quite a few upset people behind, mostly those whose particular interests were in jeopardy after the reforms. With the pre-reform state of affairs and the weakness of central power bodies, certain peoples' backstage influences were allowed to flourish. The country deteriorated into a de-facto oligarchy: corrupt businessmen were allowed to do whatever they pleased, and the aristocracy was able to intrigue to no end, exercise almost absolute power in their provinces and some even were starting to think about seceding their provinces from the mainland. Unofficial power games took place of centralized power structures. Foreign spies also started gaining backstage influences.

The Empress' reforms clearly did upset many of such people. However, the Empress was able to win many of those who were tired of the chaos and who understood that the chaos was inhibiting the Kingdom's prosperity and even threatened its existence. One of such aristocrats was even responsible for plalcing her in the throne in the first place. This, in conjunction with her ability to use the Ultima Ratio Regnum, allowed her to enforce her policies... until she was assassinated. So at the moment of her death people, including powerful people, are generally split into three factions: Those who see merit in her reforms and see that these reforms allow the Kingdom to prosper, those who wish the return to old days because they miss their ability to pursue backstage and illegal interests, and those who opposed the Empress solely on the basis of her authoritarianism (this includes the legalists, who believe that law must be obeyed and must not be circumvented no matter what, not even to enact better law).

Answer 1

I will introduce you to "The Last Argument of Kings"(Ultima Ratio Regum)¹:

_{Image courtesy of Wikipedia}

When the subjects (or foreign countries) do not obey the King (either because the orders are "unlawful" or because the subjects ignore them despite being lawful, it really works the same either case), the Ultima Ratio Regum explains to them why they should be more reasonable. While it is certainly no jurist and it has not the finest knowledge of laws, it has a very loud voice, and can silence a lot of criticism -forever-.

In the end, what laws are in effect depends of which faction supports them, how powerful they are and how decided they are to impose those laws².

What you describe is an institutional crisis, were the power structures do not match the requirements of the power actors. In these cases, the different factions will usually be more ready to support their options "to the last consequences", as those will mean dramatic changes².

When this happens, the situation can resolve in one of several ways:

• an agreement is reached for a new system.

• no agreement is reached, and a faction seizes power and establishes a new system (revolt, coup, conspiracy). Here the Kings can have their arguments "heard".

• no changes are made, the country plunges into chaos.

• no changes are made, the country stagnates and is wiped out by neighbours.

Of course, those are broad possibilities and a lot of intermediate options are possible (the King power forces the aristocracy to negotiate, and the changes are smaller and still lead to some decadence).

quite a few upset people: the legions of jurists who are cut from some of their income,

Jurists do not decide laws, they codify and/or apply them. And they generally do not have an army.

If you mean the people who was happy with the older system and who wish no changes, then they either accept the changes, try to negotiate the changes, or oppose them either by rebellion or conspiracies. Those movements triumph or fail; in the end it all ends in one of the four options explained above.

That does not mean, however, that legality and formalisms are not important. With a legal system, the powers of the different actors are established and everyone knows what they are entitled and what their obligations are. Ignore those and act as a tyrant, and your subjects may worry about what you are going to demand from them next, and wonder if maybe they would be better supporting an opposing claimant or a foreign country.

But if the two options are being a tyrant and breaking with tradition/laws, or allowing your country/dinasty to rot, by all means be a tyrant. Once the crisis has passed and the new system is in place you can try to win your subjects back to you by showing that you are not pushing your position and the advantages of the new system.

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¹And to be clear, this is not some kind of exageration or joke. They were "baptized" that way by Louis XIV of France, to make sure that everyone knew what they were useful for.

²For example, if a POTUS decided to proclaim him/herself dictator, it would not be unexpected for people to stage coups and revolts. But it would be unexpected for those coups and revolts to happen against milder measures, even if those are not popular (for example a tax increase).

Answer 2

To answer the question, we have to look at the enforcement of the law. Who is enforcing the law, and how does it operate.

I don't give a care if there's a law on the book that says I can't clip my left pinkie toenail if it's a full moon unless a black cat walked across my path no more than seven days ago. Pass whatever laws you want. It's not until the police show up and try to interact with me under the assumption that I"m a rule breaker that things start to matter. Find me guilty of whatever you want. It's not until you levy a fine on me, and have the enforcers make good on that levy.

So the real question is, after the Empreress's death, what enforcement systems are in place, and how do they feel about the queen's rules? If they like them, the legions of beuocrats will find they have no leg to stand on.

This pattern is most famously seen in coups where the military comes in and enforces law. If the military was quite happy with what they had before, they may stand in and keep the peace until a new leader can be decided. If the military was less happy (which they usually are), the next leader typically comes from the military, and a military-run state occurs.

From there, the answer becomes story dependent. It depends on the nature of the individual. Most individuals who come into power prefer clear concice rules because that makes their life easy. However, we have seen some rulers encourage the chaos. If your goal is to make everyone more impotent than yourself, so that you are most powerful, chaos is a great thing. If your goal is to make yourself more powerful without crushing others, chaos is less valuable.

Answer 3

Just look at our own history for laws to change / remain:

• A revolution with lots of beheading going on could go either way
• The kingdom being conquered by another kingdom with a similar / dissimilar history would allow / disallow the rules to remain.
• The state form changes to a Democracy and the good rules are taken and the bad ones even more abolished.
• Communism takes over and abolishes everything.
• This list is endless...

Answer 4

In the end, legal systems are a social contract.

It might be a bit misleading to take this analogy to the limit. Most people get born into their legal system. Contracts are signed between theoretically equal partners.

Still, legal systems work because enough people think they should work, and these people can make the rest of the people comply with the legal system most of the time. When the agreement breaks down, society breaks down. There cannot be enough cops, prosecutors, and judges to enforce compliance with the law unless most people comply voluntarily anyway.

So assume that with the death of the Empress, the new order is established well enough that few people (and especially few powerful people) want the disorder that an attempted return to the old ways would bring.

The ultimate justification of the government is the consent of the governed.

Answer 5

The most important question here is whether this kingdom goes through any social development.

If there is any shift in power between different classes and social groups, then, even if the country falls back to a "fully legitimate king", there is a good chance that the new set of laws will survive, just because it would better reflect the new reality. Napoleonic Code is one of the most known examples.

On the other hand, if Empress' opponents are thoroughly reactionary, they will make sure that everything, including the law, would return to status quo.