Inventing Necessity: How Modern Jurisprudence Transformed the New 'Third World' States

Date & time
1–2pm Wednesday 17 March 2021

via Zoom

Dr Coel Kirkby
Centre for International and Public Law (CIPL)
6125 5375
ANU College of Law Visitor Seminar

Part of the ANU College of Law Visitors Seminar Series series

Coel Kirkby seminar

Join our next ANU College of Law 'virtual visitor' Dr Coel Kirkby (University of Sydney) as he discusses his latest research.

In the 1960s, soldiers and settlers overthrew elected governments in the newly independent African states of the former British Empire. Judges in these countries faced hard cases that demanded their adjudication of the legitimacy of new governments installed by illegal force. Their solution was the ‘doctrine of necessity,’ a common law test derived from Hans Kelsen analysis of revolutions. These cases provoked a fierce jurisprudential debate over the proper theoretical analysis coups. Legal positivists focused on the discontinuity of legal systems: judges could only observe social facts to determine whether a coup had succeeded in creating a new legal system. New natural law critics instead focused on the continuity of (national) communities and their common good through time. This practical test allowed judges to find most coups legitimate so long as they did not threaten the community’s existence by a programme of radical social transformation. At the margins of these debates was a new generation of African legal scholars who grounded their analyses in a liberal or Marxist political economy of the postcolonial state. Their untold story illuminates how mid-century Anglo-American jurisprudence provided an alibi for a Cold War reaction against ‘Third World’ socialist governments.


  • Dr Coel Kirkby »

    Coel Kirby

    Coel Kirkby is a Lecturer at the University of Sydney Law School and Associate Director of Julius Stone Institute of Jurisprudence. He was elected the Smuts Research Fellow in Commonwealth Studies at the University of Cambridge for 2017-8. His work focuses on legal history and legal theory, especially in the British Empire and its successor states.


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