Changing the rule of recognition without rupturing legal continuity?

To what has just been said, the following objection can be raised: It is wrong to assume that the Constitution is directly pointed out as the supreme legal source by the accepted rule of recognition; the Spanish Constitution of 1978 was en­acted by a parliament — the Cortes — elected in accordance with the Law for Politial Reform which, in turn, was issued in accordance with the Basic Laws of the Franco regime, and so on, so that legal continuity would go back all the way to the provisions of the Junta of Burgos which appointed General Franco Chief of State.

Although it may reflect mental habits and patterns of interpretation not uncommon among jurists, in our opinion this objection is clearly mistaken. Be­cause, though every irregular modification of the supreme source — if it is suc­cessful — translates into the use of a new rule of recognition by the courts and officials, not every regular change of the supreme source implies continuity of the same rule of recognition. An already classical example is the one advanced by Hart (1994, 120 f.), of the colonies which acquired independence through a constitutional structure established by an act of the Westminster Parliament. Once independence is consolidated, the rule of recognition accepted in a former colony no longer includes any reference to the legislative powers of the British parliament, even though the local constituent authority was originally created by an act of that parliament. Another example in the same direction is that of Kent Greenawalt (1988), concerning the relation between the U. S. Constitution and its clause of ratification. That clause stipulates that the Constitution will come into force in those States that have ratified it when nine of them have done so.

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