Kelsen, Merkl and Nepal’s constitutional moment
The recent wave of political unrest across Asia has done more than fill news feeds with images of protests, arson and street clashes. It has reopened old questions about how constitutions survive, or fail, when popular anger forces sudden political change. The uprisings in Bangladesh and the youth-led upheaval in Nepal are at once immediate political phenomena and living tests of theories about revolution, legitimacy and legal continuity. Reading those events through the lens of legal philosophy helps us ask a sharper question: when a constitution remains on paper, but its institutions are shaken, what makes power lawful?
In Nepal the Gen Z protests that erupted this year toppled a government and produced the unusual sight of a former chief justice, Sushila Karki, being sworn in as interim prime minister. The movement’s leaders framed their action as corrective, driven by demands for accountability, but lawyers and scholars have pointed out that the installation of a transitional executive raises uncomfortable constitutional questions about who may legitimately exercise sovereign power while the constitution remains formally in force. Reporting from the ground describes a powerful, leaderless protest movement that forced rapid political change, even as debate grows about the interim government’s legal standing.
South Asia’s past offers useful precedents. Pakistan’s mid-20th century jurisprudence shows how courts have sometimes been asked to choose between legal doctrine and political reality. In the famous Dosso decision of 1958 the Pakistani Supreme Court accepted Hans Kelsen’s idea that an effective revolution can produce a new legal order, a move that validated the abrogation of the 1956 Constitution. That position was controversial and short lived, because fifteen years later the court in Asma Jilani rejected the wholesale use of efficacy to justify coups and remade the argument for constitutional supremacy. These two cases, read together, illustrate the tension between what a legal system formally requires and what political power makes effective.
Hans Kelsen’s theory of the Grundnorm offers one way to make sense of that tension. Kelsen held that a legal order’s validity rests on a foundational norm, and that in some circumstances a successful revolution can alter the Grundnorm and thereby create a new, functioning legal system. Critics have argued that this reduces legality to mere effectiveness. Others, including later Pakistani judgments, warned against treating effectiveness as the sole source of legitimacy. The corrective jurisprudence in Asma Jilani stands for the more cautious view: courts should not lend easy legitimacy to power seized by force, and constitutional continuity matters even when political reality is messy.
At the same time, the German-Austrian tradition offers a more pragmatic tool. Adolf Julius Merkl’s Fehlerkalkul acknowledges that imperfect legal systems will produce norms that conflict with higher rules, and it treats some unlawful acts as provisionally effective until a competent court rules otherwise. That approach helps explain how an interim appointment can be described as “unconstitutional but de facto operative” in the short term, while litigation and political processes decide its ultimate fate. In Nepal’s case this framework points to two simultaneous truths: the interim administration may lack full constitutional validity under articles that define executive formation, but it can be treated as a temporary, functioning authority until courts or a new democratic mandate definitively settle the matter.
Across Asia the recent disturbances have also shown that revolutions wear social as well as legal faces. Bangladesh’s year of turmoil has exposed institutional fissures that now demand accountability and legal repair, and South Korea’s near-constitutional crisis last year highlighted how quickly emergency measures can provoke what some commentators called a Schmittian moment, a fleeting temptation to prioritize decisive authority over procedural safeguards. Those episodes underscore a recurring lesson: legality and legitimacy are not identical. A government that commands popular consent but lacks clear constitutional backing poses real dilemmas for judges, lawyers and political actors who must weigh rule-of-law principles against the dangers of paralysis or renewed violence.
For students of constitutional law the subcontinent’s recent history is therefore doubly instructive. Pakistan’s jurisprudential journey from Dosso to Asma Jilani warns against simple appeals to efficacy. Kelsen and Merkl together offer a vocabulary for describing phenomena that sit between legality and power. And Nepal’s unfolding story shows how a written constitution can remain formally supreme while its practical authority is contested. The real test, in each country, will be how institutions respond: whether courts insist on constitutional remedies, whether political actors seek consensual settlements, and whether new democratic processes are allowed to restore durable legitimacy.
There is no neat conclusion to draw from this unstable mix of popular energy and constitutional uncertainty. But a useful takeaway is that theory matters. When judges, activists and citizens can deploy conceptual tools rather than slogans, they stand a better chance of steering transitions toward stability and rights-respecting order. Kelsen’s abstract constructions, Merkl’s practical calculus, and Pakistan’s hard-won course correction together offer ways to think about constitutional breakdown without normalizing coups or sacrificing rule-of-law commitments. In turbulent times, legal philosophy does not give final answers. It does, however, supply a measured language for arguing about the conditions under which power both is exercised and can properly be called lawful.
Disclaimer: This content has been produced and published by Local Law Media Network for informational purposes only. It does not constitute legal advice. The views and opinions expressed are independent and do not reflect the position of any legal practice or organization associated with the individuals mentioned.
