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Can a law protect itself? For example, could it be written in to a law that, under no circumstances, it should be amended or abolished (a) for a fixed duration or (b) indefinitely?

I am most interested in the United Kingdom but would also be interested to know what the general answer is, if there is one.

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    Am I the only one who sees a variation of Gödel's incompleteness theorem here? "Any amendable constitution is either incomplete (i.e. does not mention anything about protections that cannot be removed) or inconsistent (contradicts its own amendability). – Mehrdad Sep 19 '17 at 11:10
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    A law only has value as long as there are enough people willing to enforce it. But that's more a question about politics than a question about law. – kasperd Sep 20 '17 at 8:37
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    @Mehrdad Gödel himself apparently saw that, causing no small degree of concern to those involved in his US naturalization interview. See also web.archive.org/web/20141226210511/https://robert.accettura.com/…. – phoog Sep 20 '17 at 13:39
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    @phoog: Haha wow! Didn't expect this one! – Mehrdad Sep 20 '17 at 17:37
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    Let's say you make such a law, and then the State of UK itself gets destroyed. What happens to the law? Think about it and you will hopefully get some insights into what a law actually means. – user1323 Sep 21 '17 at 5:46

13 Answers 13

68

No

Parliament is sovereign:

Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution.

  • Comments are not for extended discussion; this conversation has been moved to chat. – feetwet May 2 '18 at 14:39
36

You might want to look at eternity clauses, which may not be used in the UK, but feature prominently especially in the German Grundgesetz.

An eternity clause in the constitution or basic law of a country is a clause intended to ensure that the law or constitution cannot be changed by amendment.

Of course, such an eternity clause only protects from alteration by lawmakers, but, as with all laws, it can only be upheld as long as people care enough about its enforcement.

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    +1, usually a Grundgesetz (DE) or Grondwet (NL) is already hard to beat, but eternity clauses are even tougher if not impossible to be abolished. – Mast Sep 19 '17 at 18:19
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    +1 Brazil has this type of clause in the constitution too.As long as the current Constitution is valid those clauses cannot be changed. Interesting to say that the eternity clauses are called "stony" in Portuguese (cláusulas pétreas), suggesting they have been written in stone, so cannot be erased or changed. – gmauch Sep 19 '17 at 22:00
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    You need to add a relevant quote from the link; link only answers are not accepted. – Andy Sep 19 '17 at 22:04
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    Or short of an "eternity clause", it's not unusual around the world for constitutional changes to require some kind of super-majority of legislators. The UK is an interesting choice to be "most interested in", since our principle of the sovereignty of the current parliament is so extreme. Arguably our form of government is "non-constitutional periodically-elected oligarchy". – Steve Jessop Sep 20 '17 at 13:32
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    @FlorianCastellane Not in itself, in case of the German Grundgesetz, there is even a separate article that explicitly states that it can be replaced by a(nother) constitution to clarify the issue. (Art 146 GG) – Frank Hopkins Sep 21 '17 at 8:43
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More general answer.

Yes, it can.

There are provisions, usually encountered in basic laws, that those, under any circumstances, cannot be repelled. See, for example, this passage from the German Grundgesetz:

Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible

Similarily, famous legal philosopher, H. L. A. Hart, noted that there are 2 kinds of rules in law. We have primary rules, that tell us what we can and can't do and there are secondary rules. The secondary rules tell us how can primary rules be created. If law is enacted contrary to those secondary rules - it is not a law. For example, you wouldn't call a writing on a toilet door in American Congress a law - it was not passed officially, with voting, debate etc.

No, it can't.

F. Lasalle has famously written that there are two constitutions. We have written one, with all rules neatly put down and something he called a real constitution, based on who is in power in a country. Let's say that a party X wins elections, forms government, gets all the power in the country, subordinates judiciary, but does not have the majority to change constitution. What is there to stop it from electing laws that are contrary to the basic law?


But should it?

As for the limit of parlimentary sovereignty, consider this passage from Jacskon vs Her Majesty's Attorney General case:

Parliamentary sovereignty is an empty principle if legislation is passed which is so absurd or so unacceptable that the people at large refuse to recognise it as law

Note, that I do not ascribe this passage to Yes, law can protect itself, nor No, it can't position. This citation points to one of the basic controversies in the philosophy of law: what is law and does every law need ''protection''. Consider, for example, that the parliament enacts a statute or a constitutional provision that every bald person's belongings shall be confiscated. Let's assume that the provisions were enacted according to all the procedures (secondary rules).

Would you consider the provisions just? Legal? Would you want the society to recognise this law? Would it need protection?

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The Constitution of the United States provides for amendments to the Constitution by a process requiring ratifications by three-fourths of the states, but also says no amendment can deprive any state of its equal suffrage in the senate without its consent.

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    Question is about the UK, not US. @alephzero You're probably already into "I am the Senate" territory. – jpmc26 Sep 19 '17 at 6:52
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    This doesn't answer the question. The question asks for either the UK or "the general situation" and this is neither. We're not looking for 200+ answers covering every possible country. – David Richerby Sep 19 '17 at 10:38
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    @jpmc26 Questioner states they "would also be interested to know what the general answer is, if there is one", which involves showing what other countries do – Ben C. R. Leggiero Sep 19 '17 at 13:42
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    @MichaelHardy I meant Stack Exchange as a whole, summarized as "real questions have answers, not items". – David Richerby Sep 19 '17 at 17:10
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    @DavidRicherby to a general question "can X?" a single example of X is sufficient to arrive at an affirmative answer. No further context is needed. – phoog Sep 20 '17 at 14:06
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Ultimately, a law is nothing more or less than a kind of rule agreed by a set of people.

It might be agreed by some and enforced by others, there may be an informal agreement on how such rules may be set or changed, and who they apply to, or principles the collection of people follow to form the rules and distinguish between rules that are valid and not valid. But since the rules we call "laws" only exist because enough people (or enough of some part of "people") agree they exist, they can always be changed if people agree, because there really isn't anything stopping them being changed upon agreement, and they have no independent existence other than an expression of human views.

So the answer is no, laws can't "protect" themselves. That's for two reasons - people can change their minds, and by the nature of laws it isn't really possible anyway (as far as we know):

The idea that people can change their minds is explored in other answers, so Im going to focus on "possibility". To see that it isn't possible anyway, even if we wanted to, let's do a thought experiment.

Suppose everyone in the country has somehow become illiterate, so we don't have any written knowledge. (That doesn't change any laws, but it saves us from referring to books and old legal cases to derail the argument.) In this world, I develop a mind ray that let's me impose a deep and fixed belief in everyones mind, so they honestly believe it and think it is self evident and true, and always has been.

Now I use that ray and reprogram everyone's beliefs so they forget anything about the US constitution (or whatever law you see as fundamental in your country), and reprogram them to believe there is a law - and always has been - that completely contradicts whatever law you hold most dear. They completely lack any knowledge anything else ever existed.

And this would then be the law, there would be no basis to argue otherwise.

You could metaphysically argue they didn't freely choose it, or that some universal principle "outside people" sets what is a "law", but they themselves would tell you that you are wrong, and its how the law is in your country; police would patrol it, judges would enforce it, and so on.

You'd also have to say what principle it was that set the laws... and an appeal to universal principle probably won't work at all well, in light of how diverse existing laws already are (which tends to show there isn't some external decision maker to appeal.to).

Another scenario, without rays: much of America dies, except 20 surviving factory workers. (Or perhaps 200000). Which laws passed by the 'old' USA will they not be able to decide differently, even if all 20 (or 200,0000) of them agreed they wanted a different law? Answer: no conceivable law couldn't be made differently if they wanted it.

People have at times tried to set laws that lasted forever. Nobody, and no society or legislative body, ever, anywhere, has succeeded.

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    You saved me from having to write this answer. But your thought experiment is very weird and peculiar and not at all necessary to the actual point here, which can be more succinctly stated: A law which isn't followed or enforced is just a piece of writing. No law can enforce itself; that requires people. – Wildcard Sep 20 '17 at 2:27
  • Of course, this is apart from the question actually being asked, which is different from the title of the question. The title "can a law protect itself?" is a definite "no." But, "can a law be written according to existing constitutions/legislative frameworks which contains provisions for its own protection?" is much more multi-faceted. This isn't World Building SE, after all. – Wildcard Sep 20 '17 at 2:29
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    @wildcard - good replies! But in your first example I think many people would say a law, even if disregarded, is still a law. So this doesn't cover whether a law can "protect itself" from removal as a law, because being followed/not followed/enforced/not enforced may not be seen as equivalent to being/not being a law. The OP seems to be about protecting its status as a law, rather than protecting its enforcement as a law (Which raises a philosophical point beyond this question, "is a law still a law if ignored? What is a law if not its enforcement, or the perception that it may be enforced?" – Stilez Sep 20 '17 at 9:06
  • @wildcard - Also a law in your second example is never protecting itself. It's relying on another, different law for protection. At best this creates a hierarchy of "law protecting laws" which will run out fairly quickly. As the top level law (or self-referential group of top level laws) can't be protected this or another way, by definition, then neither can it protect others more than it is protected itself. – Stilez Sep 20 '17 at 9:07
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There's a logical fallacy in what you are suggesting; if the law passed on 19th Soptember 2017 can be annulled by a constitutional court or repealed by a future Parliament (to use the British terms), then the wording of that law does not affect that fact. Conversely, if for some reason it cannot be changed (or cannot be changed for a period), that reason must exist independently of the law itself, and need not be stated in the law.

So yes, a law can state that it cannot be repealed, but that wording will make no difference to anybody.

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No.

Any law, including constitutions, can be changed if enough people want it to change. As a simple, though unlikely, example, consider a law that literally everybody in a country wants to change from A to B. That law will be changed, regardless of what the constitution or any other law says; if it is felt to be necessary, those laws will be changed, too. As long as enough people want a law changed, including enough of the people who could stop the change, then a law can be changed.

Laws have no intrinsic power. They are merely a societal construct. They work because society in general agrees to be bound by them or, in less happy cases, because some part of society has enough power to force everybody else to be bound by them. Without one or both of those conditions, a law may as well not exist. And, indeed, there are many laws that fail this: see your favourite list of obsolete laws.

  • This is really good answer. For example suppose a territory has constitution which says it is secular. But if somehow Muslims (through massive breeding) become majority in that territory and if they all decide it will be changed to constitutionally Islamic republic and no law or previous amendment can prevent that. I would like to enlighten me on how that will be prevented in this case. – Rolen Koh Sep 22 '17 at 8:13
  • @RolenKoh I'm not sure if it was deliberate, but please note that talking about a group of people "breeding" is very often an attempt to dehumanize them -- we normally "breed" animals, whereas people "have children". Also, I don't see any reason to single out Muslims: people of all religions have children and probably most religions have moral codes that the more enthusiastic followers would like to be part of the law. – David Richerby Sep 22 '17 at 15:37
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If you look at Turkey's constitution, it more or less looks like this;

1-) The republic of Turkey is blah blah

2-) The previous law cannot be changed.

  • What prevents the second part from being changed, and removing the protection for the first, then? – Nij Sep 21 '17 at 19:19
  • @Nij Actually, that is one of the main joke that the high school students make when they learn this law for the first time because, in fact, there is no protecting law for the second law.However, in reality, if some government wanted to change the first law, they wouldn't bother with the second law because changing the fundamental principle of this country and leaving the rest is meaningful, so what they would do is that they just disband the whole constitution, and rewrite it from scratch. – onurcanbektas Sep 22 '17 at 5:07
  • Interestingly enough, this sort of approach does provide some neat simplifications for people. If its impossible to tweak #1 without repealing #2, you can be sure #1 stays put simply by monitoring #2. If Law #1 is a 100 page document, and law #2 is 2 lines of text, that can be very convenient. – Cort Ammon Sep 22 '17 at 18:43
  • @CortAmmon I have never thought about that, but you are right, it indeed would be a protection at some degree.However, (if I remember correctly) The first law is also a single line law. – onurcanbektas Sep 23 '17 at 4:34
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    @onurcanbektas True, in this case it's a silly argument, but it might be more interesting if #1 was an entire constitution. It reminds me a lot of the privacy canaries that some companies put on their website, "We do not give your data to the government," which is then removed if the government ever compels data and gags the company from admitting it. – Cort Ammon Sep 23 '17 at 6:18
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Law is adopted through a procedure defined in a (written or, in case of the UK, unwritten) constitution. Adopted and also modifiable, later law takes precedence.

Can some constitutional rules protect themselves, then?

Logically, the only problem with amending a "protected" provision is that such an amendment might be unconstitutional. Practically, logic alone won't stop it.

A Constitution which would not establish a constitutional court with the power to annul unconstitutional acts, is a light which does not shine.

Can a constitutional court annul an unconstitutional amendment of the constitution itself, then?

Maybe.

I am struggling to see how to put this to test in the United Kingdom where the constitution is unwritten and is not composed of any clauses, much less eternity clauses. So in the UK the answer would probably have to be "No".

However, in my own country (Czech Republic) the equivalent was tested after a "one off" constitutional law (roughly corresponding to a constitutional amendment) was passed effecting immediate dissolution of the Chamber of Deputies, which was the sole purpose of that constitutional law. The Constitutional Court found a conflict with one of the eternity clauses in the constitution. In fact, two sources of conflict: Retro-activity in relation to elections of the sitting Chamber of Deputies, and also lack of general applicability (i.e., in any future similar situations whatsoever). The "one off" constitutional law was annulled and the Chamber of Deputies had to serve the remainder of the term.

This kind of protection apparently worked in this case.

There were other cases in the past where arguably "unmodifiable" constitutional provisions got amended (weakened), but nobody took the matter to the Constitutional Court to test.

This kind of protection is therefore nowhere near absolute, even if we discount the easy way of overturning a constitution en bloc: a revolution.

While the particular story contained in this answer is specific to the Czech Republic, some parallels can be found in Germany and Austria at least.

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This may be better served as a comment, but I don't have the rep yet.

In a truly global sense, the answer is clearly "NO". Any government who's authority is behind the law can be over-turned and the law goes away.

If you limit the context, there are plenty of examples. The US Constitution includes the provision:

Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article;

Within the confines of the government running under the constitution, the constitution itself is a self-protecting law. It's mechanism for modification expressly prohibits one particular possible modification. Of course, had the government been overthrown before the time limit, such an overthrow would have made the entire constitution null.

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KINDA

You can make it hard enough to renew it that nobody will ever be able to.

Something silly like the spanish constitution, 75% of congress, 75% of senate, +55% on a national referendum, again 75% congress, again 75% senate, and then the king's approval.

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No but YES I said no because in India Constitution can be amended and said yes because if that amendment destroys basic structure of Constitution then there is a law or provision to stop that. Give you an instance where Constitution was being amended and the parliament tried to take full and total control by amending it. This is clause 4 and 5 of 42nd amendment:

(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question in any court on any ground.

(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.

After this amendment Minerva Mills filed a case against The union of India. In which The supreme court of India said:

Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of our Constitution and therefore, the limitations on that power can not be destroyed. In other words, Parliament can not, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features. The donee of a limited power cannot be the exercise of that power convert the limited power into an unlimited one.

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The modern idea of law will never openly write preservatives into its code because it believes it is open to improvement.

Instead it's held back by becoming complicated and relying on overly technical language that prevents the average reader from really understanding what its trying to say.

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