Post-Colonial Public Law: Are current legal establishments democratically illegitimate?

Journal article


Gagnon, Jean-Paul. (2012) Post-Colonial Public Law: Are current legal establishments democratically illegitimate? African Journal of Legal Studies. 5(1), pp. 21 - 43. https://doi.org/10.1163/170873812X626081
AuthorsGagnon, Jean-Paul
Abstract

The extant literature covering indigenous peoples resident on the African continent targets colonial law as an obstacle to the recognition of indigenous rights. Whereas colonial law is argued by a wide body of literature to be archaic and in need of review, this article takes a different route and argues the perspective that colonial law is democratically illegitimate for ordering the population it presides over - specifically in Africa. It is seen, in five case studies, that post-colonial public law structures have not considered the legitimacy of colonial law and have rather modified a variety of constitutional statutes as country contexts dictated. However, the modified statutes are based on an alien theoretical legality, something laden with connotations that hark to older and backward times. It is ultimately argued that the legal structures which underpin ex-colonies in Africa need considerable revision so as to base statutes on African theoretical legality, rather than imperialistic European ones, so as to maximise the law’s democratic legitimacy for both indigenous and non-indigenous Africans.

KeywordsAfrica; colonial law; legitimacy; legal theory; democracy
Year2012
JournalAfrican Journal of Legal Studies
Journal citation5 (1), pp. 21 - 43
PublisherMartinus Nijhoff
ISSN2210-9730
Digital Object Identifier (DOI)https://doi.org/10.1163/170873812X626081
Scopus EID2-s2.0-84939527531
Page range21 - 43
Research GroupSchool of Arts
Place of publicationThe Netherlands
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https://acuresearchbank.acu.edu.au/item/8904q/post-colonial-public-law-are-current-legal-establishments-democratically-illegitimate

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