Republic of Fiji v Prasad: revolutionary legality and the taxonomy of legal change

Abstract

ABSTRACT Hans Kelsen's theory of the nature of legal systems—and how legal systems are changed—has been endorsed in a series of cases in which courts have adjudicated the legality of a revolution. In all of these cases except one, courts have validated the revolutionary regime. This article focuses on the sole case that stands against this jurisprudential tide: Republic of Fiji v Prasad. In Prasad, the Court explicitly criticised Kelsen's influence on the jurisprudence of revolution and, remarkably, declared the coup in question unlawful. Commentators have received the case positively, arguing that the court's eschewal of Kelsen was instrumental to the result in the case. I seek to rebut this received view. I show that the Kelsenian view is alive and well in the Court's method and result. I conclude with broader reflections on the very coherence of a jurisprudence of revolution itself.