The Jurisprudence of Emergency: Colonialism and the Rule of Law

by Nasser Hussain

Overview

Ever-more-frequent calls for the establishment of a rule of law in the developing world have been oddly paralleled by the increasing use of "exceptional" measures to deal with political crises. To untangle this apparent contradiction, The Jurisprudence of Emergency analyzes the historical uses of a range of emergency powers, such as the suspension of habeas corpus and the use of military tribunals. Nasser Hussain focuses on the relationship between "emergency" and the law to develop a subtle new theory of those moments in which the normative rule of law is suspended.

The Jurisprudence of Emergency examines British colonial rule in India from the late eighteenth to the early twentieth century in order to trace tensions between the ideology of liberty and government by law, which was used to justify the British presence, and the colonizing power's concurrent insistence on a regime of conquest. Hussain argues that the interaction of these competing ideologies exemplifies a conflict central to all Western legal systems—between the universal, rational operation of law on the one hand and the absolute sovereignty of the state on the other. The author uses an impressive array of historical evidence to demonstrate how questions of law and emergency shaped colonial rule, which in turn affected the development of Western legality.

The pathbreaking insights developed in The Jurisprudence of Emergency reevaluate the place of colonialism in modern law by depicting the colonies as influential agents in the interpretation and delineation of Western ideas and practices. Hussain's interdisciplinary approach and subtly shaded revelations will be of interest to historians as well as scholars of legal and political theory.

Product Details

ISBN-13:	9780472113286
Publisher:	University of Michigan Press
Publication date:	08/21/2003
Series:	Law, Meaning, And Violence
Pages:	192
Product dimensions:	6.00(w) x 9.00(h) x 0.80(d)

About the Author

Nasser Hussain was Professor of Law, Jurisprudence, and Social Thought at Amherst College.

Read an Excerpt

The Jurisprudence of Emergency: Colonialism and the Rule of Law

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By Nasser Hussain

University of Michigan Press

Copyright © 2003 Nasser Hussain
All right reserved.
ISBN: 0472113283

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Chapter 1 - Introduction: The Historical and Theoretical Background

In 1955, the Supreme Court of Pakistan (then called the Federal Court) found itself, in the words of the chief justice, "at the brink of a chasm." The question before the Court was whether the governor-general had acted illegally in his recent decision to dissolve the constituent assembly and rule, in effect, by decree. The story is a long and unhappy one, and I will do no more here than briefly sketch its outlines. Pakistan was granted dominion status by the departing British colonists through the Indian Independence Act of 1947. The act provided a provisional constitutional framework until a new one could be effected, with the governor-general representing the Crown, and a constituent assembly responsible for legislative work, including the making of a new constitution. Seven years later, with no new constitution enacted, the governor-general, caught in a bitter test of wills with the legislature, dissolved the assembly and promulgated ordinances for the holding of fresh elections. A Special Reference was directed to the Supreme Court in its advisory jurisdiction, asking for a ruling on the legality of these actions.

There is an impression of sad inevitability in the opening of the Court's opinion. Would the governor-general even abide by an adverse ruling? Would restoring the constituent assembly, and thus the intractable gridlock between executive and legislature, threaten the very stability of the state? The Court chooses to affirm the actions of the governor-general, "to cross the gap by a legal bridge." Such a crossing, and such an affirmation of actions, is effected by resort not to the authorization of any regular law but to the rationale of supreme necessity. "I have come to the conclusion," the chief justice informs us, "that the situation presented by the Reference is governed by rules which every written constitution of a civilized people takes for granted. This branch of the law is, in the words of Lord Mansfield, the law of civil or state necessity." With the niceties of constitutional authorization exhausted, with the claims of legal propriety spent, someone has to be able to act, the Court insists, if the state is to survive. The maxim of Salus populi suprema lex (safety of the people is the supreme law) is invoked by the Court as sufficient and long-standing authority for the actions of necessity not covered by regular law. The governor-general as representative of the Crown would thus be exercising the plenitude of prerogative for the public good. Once the Court finds a justification for the actions of the governor-general in the law of necessity, it can move to its conclusion with an axiomatic force, citing an impressive list of authorities from Bracton to Locke, Mansfield to Dicey. The Court's ruling, however, turned out to be only a temporary solution to the political crisis of the country: the following year a new constitution was enacted, only to be suspended by the same governor-general, now the president, who in turn was removed from office by an Army General under a declaration of martial law. At each turn of events, the law of state necessity was claimed as justification.

I begin, and end, with this case, because it neatly captures and conveys the principal themes and, indeed, the texture of what this book is about. On a narrative level, this study tells the story of how the vocabulary and the sources of authority that constitute the Court's opinion came to pass. What, after all, is a Pakistani chief justice in 1955 doing citing not only the technical provisions of British statutes but also the subtleties of Bracton on sovereignty, and Maitland on the Convention Parliament and James II? In short, I tell the story of the extension of English law and constitutionality to the colonies: the haphazard introduction of a rule of law, its colonial mutations, and its enduring consequences. On a more analytic level, however, this study engages with the precise issue before the Supreme Court in 1955: the discourses of modern law that form the potential conflict between state power and legal authority, between what the state perceives as a necessary power for survival at certain moments and what the law makes available--a tension between, as the title of this study indicates, the requirements of sovereign emergency and the constraints of a rule of law.

This book examines the history of British colonialism in India from the late eighteenth to the early twentieth century, drawing out and delineating how questions of law and emergency shaped the conceptualization and practice of colonial rule, and how these concepts in turn affected the development of Western legality. In doing so, it develops notions in legal theory of the meaning of a rule of law, the function of the legal exception, and the range and features of emergency powers, from the suspension of habeas corpus to the declarations of martial law.

The chief justice in his opinion for the Court in the Special Reference takes us back to the provisions for emergency action within the British constitution, to those instances of English seventeenth-century history where the requirements of sovereignty did not match the provisions of the law. But, of course, he need not have gone searching quite so far back, as the more immediate past of colonial India would have furnished ample precedent of a negotiation between political exigencies and rule-based law. Indeed, the history of the British colonial state in India, from the very beginning, was shaped by these persistent questions of power and legitimacy.

Indeed, by the time of the impeachment of colonial India's first governor-general, Warren Hastings, in the 1780s, government by law was already becoming the privileged basis for the conceptualization of the "moral legitimacy" of British colonialism. The ideological justification for the British presence in India drew heavily on a much-vaunted tradition of ancient English liberty and lawfulness. In some ways this should come as no surprise, for to the late-eighteenth-century English political imagination, the virtue of a rule of law was as settled a fact as its Englishness. As John Brewer and John Styles, the editors of An Ungovernable People, have shown,

seventeenth and eighteenth century Englishmen's conceptions of government were intimately bound up with their actual experience of the law. This sense of the political nature of the law (and the legal nature of politics) was in part a direct consequence of the state's use of the courts as the chief means of exercising authority . . . good governance was equated with justice and the fair dispensation of the law with good government: in this sense the "rule of law" was no empty phrase.

The phrase was filled out, as the case studies in the collection show, through specific instances of challenges to authority, schisms between statute law and "popular justice," and recognition by officials of the legal and procedural limits on the scope of their authority. These specific conditions not only contributed to the general, ideological meaning of the rule of law as the preeminent form of a modern political rationality, but also as the central and distinguishing feature of English politics, morality, and civilization. As Brewer and Styles note: "It was a shibboleth of English politics that English law was the birth right of every citizen who, unlike many of his European counterparts, was subject not to the whim of a capricious individual but to a set of prescriptions which bound all members of the polity." With Britain's increasing imperial fortunes, this "shibboleth" became the frame of the discourse of politics, the defining boundary within which various ideologies of rule confronted each other. Government by rules became the basis for the conceptualization of the "moral legitimacy" of British colonial rule. The applicability of rules to all was understood as the distinguishing feature of British rule, and counterpoint to the "personal discretion" found in a theory of precolonial sovereignty known as Oriental Despotism. As Britain established its supremacy over areas of the globe with nonwhite populations, setting up racialized political systems in which there was for the British no question of signifying consent through an electoral process, legality became the preeminent signifier of state legitimacy and of "civilization," the term that united politics and morality. Thus James Fitzjames Stephen, the political philosopher who also served as law member in India in the 1870s, insisted:

The establishment of a system of law which regulates the most important parts of the daily life of the people, constitutes in itself a moral conquest more striking, more durable, and far more solid, than the physical conquest which renders it possible . . . Our law is in fact the sum and substance of what we have to teach them. It is, so to speak, the gospel of the English, and it is a compulsory gospel which admits of no dissent and no disobedience.

"Dissent" and "disobedience," however, remained a perceived and actual fact of colonial governance even before the arrival of nationalism. Thus, concurrent with an emphasis on the rule of law and legal protections, there was a strong insistence on the needs of a regime of conquest, particularly the discretionary authority of the central executive. The claimants of such an executive power, whether they argued for it in terms of monarchical prerogative, as they did till the end of the eighteenth century, or in terms of the supremacy of the legislature (itself part of the executive in the colonies), refused to concede that the exercise of such power abrogated the rule of law. Even the most seemingly arbitrary acts were to ensure the safety and stability of the colonial regime and were thus part of the legal sovereignty of the state itself. Others remained less convinced. There would have to be a fundamental law that would bind those in power if Britain wished to claim that it ruled its colonies by law. Thus, in Jamaica in 1865, when Governor Eyre utilized a local law authorizing wide emergency powers in order to crush a nascent rebellion, the question of whether such action could be lawful became an immense controversy in England. When Fitzjames Stephen, by no means a liberal in either his jurisprudence or his politics, asked the Court, in his prosecution of officials charged with an abuse of authority in Jamaica, "whether law was to be paramount within the British Empire, or whether officers could set aside the law and establish a military despotism with power of life and death," he was only repeating a constitutive question for colonial discourse.

This study examines one aspect of that discourse: the ways in which law enables the extension of colonial power and the consolidation of the colonial state. There is, of course, by now a rich and diverse literature on the subject of law and colonialism in general, much of it focusing on the daily practices and ideas of law in the colonies. Particularly in the field of anthropology, scholars have turned a critical eye upon the construction and operation of colonial law, showing how, for example, the category of customary law, so ubiquitous in colonial discourse, far from being a received form of indigenous law, was in fact the constructed product of colonial knowledge and of specific historical transactions between colonizers, local elites, and subject groups. This is a literature to which I am generally intellectually indebted, although this work is less anthropological and more a history of ideas.

This book also attempts to develop an insight into the deep and critical place of colonialism in the construction of modern law. It asks, What do the instances of colonial emergency have to teach us about the possibilities and predicaments of modern law in general? This book takes its place in a larger movement of intellectual inquiry that attends to the complex of power/knowledge in discourses about the colony, and it views the colonies not as passive recipients but rather as productive forces in the conceptualization and delineation of Western ideas and practices. This intellectual movement--let us roughly label it a postcolonial criticism--starting with the pioneering work of Edward Said's Orientalism has been under way for some time now. Orientalism itself drew on the ideas of Michel Foucault, who along with Said has become a ubiquitous reference in colonial studies. This is not without merit. In developing his notion of Orientalism, Said found inspiration in Foucault's ideas of genealogy, complexes of power/knowledge, and the discursive construction of regimes, ideas that have proven particularly useful to critics of colonial ideas and regimes.

While such a survey introduces the theoretical terrain that this book is written upon, and the particular ideas and insights to which it is indebted, the focus of this work is on the problematic of a rule of law and emergency as it played out in the colonial realm. If a rule of law was the settled theoretical standard of colonial politics, the institutional practices of the colonial state constantly fell short of such a standard. When much was said and done, British India was a regime of conquest, not incapable of creating certain levels of political legitimacy, but consistently dependent upon the discretionary authority of its executive and the force of its army. As such, the state would register the effects of conflicting impulses: for example, while the British in India developed an elaborate and relatively strong judiciary, they equally insisted that certain "acts of state" would be beyond judicial inquiry. Thus Regulation III of 1818--"A Regulation for the Confinement of State Prisoners"--placed suspects beyond the reach of the courts. The preamble of Regulation III is telling: "Whereas reasons of state . . . occasionally render it necessary to place under personal restraint individuals against whom there may not be sufficient ground to institute any judicial proceeding." And it is this precise ambivalence, this combination of contrary impulses, which this study focuses upon. I want to emphasize that this study neither concludes that contrary to their protestations the British failed to establish a rule of law in India nor that they were entirely successful in doing so. Rather, it is my consistent effort to draw attention to the tension between political exigencies and legal rule--to examine the rhetoric of both an illimitable sovereignty and a rule of law and the corresponding effects upon the structure of both the colonial and ultimately the postcolonial state. Indeed, the regulation that I refer to in the previous discussion is equally a good example of how such measures are not confined to India, but become precedents not only for similar measures elsewhere in the empire but for thinking about emergency in general. Thus the mode of emergency rule embodied in the Bengal Regulation is transferred in the latter half of the nineteenth century to Ireland.

The tension that I shall attempt to trace out in colonial India between competing visions of rule by sovereign decree and rule by law represents a more stark and better documented example of what has been perceived by many as a central conflict in Western legal systems: the conflict between the operation of law as universal, formal, and rational and the absolute sovereignty of the state--between reason and will, ratio and voluntas. For example, Franz Neumann organized his important and exhaustive study The Rule of Law: Political Theory and Legal System in Modern Society around the "antagonism" of these two concepts.

Both sovereignty and the Rule of Law are constitutive elements of the modern state. Both, however, are irreconcilable with each other, for highest might and highest right cannot be at one and the same time realized in a common sphere. So far as sovereignty of the state extends there is no place for the Rule of Law. Wherever an attempt at reconciliation is made we come up against insoluble contradictions.

Neumann's understanding of the persistence of sovereignty even in the normative universe of the rule of law goes a long way to help us set up the problematic of emergency. Its shortcoming, however, is that it remains too dualistic in its approach, leaving the opening terms of a rule of law and sovereignty relatively intact. What we must ask is not just how these terms are cross-pollinating in the colonies, but to what extent we are to read the colonial as an iteration of the modern. To do so requires setting out the terms of the title of this book in greater detail. I must stress, however, that while what follows does introduce the existing literature on the topics, its main task is not bibliographic; rather, I selectively draw on specific writers in order to delineate the overall vision of the book.

Rule of Law

A term that Edmund Morgan once called "that potent fiction," thus conjuring its amorphous and talismanic qualities, "the rule of law" is a phrase that is notoriously difficult to pin down. At a minimum, it means a government bound by fixed rules applicable to all, but its connotative qualities are more expansive, covering everything from a sense of equality under the law to the political ideals of justice and individual dignity. Strictly speaking, the term is a modern one, but its genealogy in the West is longer, and more complicated. In England, the term that precedes the rule of law, particularly in the Elizabethan age, is the borrowed Greek notion of Isonomia. This concept, as Hayek shows us, is not to be confused with either specific contents of the law or even early analogies to democracy. Rather, it is meant to convey the more narrow sense of rules "applicable to all manner of persons." From the very beginning Isonomia designates a polity of rules in counterpoint to one of personal discretion. By the seventeenth century, usage of the classical term is gradually displaced by the phrases "government by law" or "rule of law." In English jurisprudence, the term is most readily associated with the work of the nineteenth-century constitutionalist Albert Venn Dicey. His monumental Introduction to the Study of the Law of the Constitution formalized the concept of a rule of law and offered three key definitions or constitutive features: first, as opposed to the application of discretionary judgment, individuals were only punished for a breach of the law through the courts; second, "every man was subject to ordinary law administered by ordinary tribunals"; and finally, in a more specifically English mode, the general principles that governed rule and rights were themselves the result of specific court decisions and their value as precedent.

We shall return shortly to Dicey, but let us note here that what is striking about this formulation is that the emphasis is less on content and more on institutions and procedures. Indeed, the rule of law figures in Dicey's work as both a political ideal and a more strictly institutional arrangement.



Continues...

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Table of Contents

Acknowledgments ix

Foreword Antony Anghie xi

Preface Austin Sarat xv

Chapter 1 Introduction: The Historical and Theoretical Background 1

Chapter 2 The Colonial Concept of Law 35

Chapter 3 The "Writ of Liberty" in a Regime of Conquest: Habeas Corpus and the Colonial Judiciary 69

Chapter 4 Martial Law and Massacre: Violence and the Limit 99

Conclusion A Postcolonial Postscript 133

Appendix A The Administrative Structure of Justice in British India 145

Appendix B The History of Nineteenth-Century Legal Codification in British India 149

Notes 153

Bibliography 175

Index 185

What People are Saying About This

Peter Fitzpatrick

Rarely have scrupulous scholarship and felicity of expression been so successfully combined. The detailed 'cases' in the three major chapters are set within and effectively underpin a theoretical project of great significance . . . at the forefront of concerns with law and the postcolonial.
—School of Law, Birkbeck College, London

Editorial Reviews

". . . a work of commendable scholarship for serious researchers looking at law and the complex ways in which it is imbricated in the ideology and practices of rule."
—Social Legal Studies

Social & Legal Studies: An International Journal - Ujjwal Kumar Sing

"Rarely have scrupulous scholarship and felicity of expression been so successfully combined. The detailed 'cases' in the three major chapters are set within and effectively underpin a theoretical project of great significance . . . at the forefront of concerns with law and the postcolonial."
—Peter Fitzpatrick, School of Law, Birkbeck College, London

Peter Fitzpatrick

. . . a work of commendable scholarship for serious researchers looking at law and the complex ways in which it is imbricated in the ideology and practices of rule.”
—Social Legal Studies 


“An inventive work of legal theory rooted in a series of legal historical case studies from the later British empire. . . It brims with analytical daring and insight.”
—Law, Culture and the Humanities

“A thought-provoking series of essays on the complex relation between emergency and the rule of law and on the mutual influence of law in Britain and law in empire.
—Law and History Review

“Especially useful for scholars concerned with locating law and empire as aspects of liberal modernity, where the rule of law and the rule of power maintain what we have to recognize, finally, as a strange and uncomfortable intimacy.”
—Victorian Studies

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