Part of the ANU College of Law Visitors Seminar Series series
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.