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Hussain analyses the uses and the history of a range of emergency powers, such as the suspension of habeas corpus and th

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The Jurisprudence of Emergency: Colonialism and the Rule of Law
 0472113283, 9780472113286

Table of contents :
Acknowledgments
Chapter 1. Introduction: The Historical and Theoretical Background
Chapter 2. The Colonial Concept of Law
Chapter 3. The "Writ of Liberty" in a Regime of Conquest: Habeas Corpus and the Colonial Judiciary
Chapter 4. Martial Law and Massacre: Violence and the Limit
Conclusion A Postcolonial Postscript
Appendix A The Administrative Structure of Justice in British India
Appendix B The History of Nineteenth-Century Legal Codification in British India
Notes
Bibliography
Index.

Citation preview

www .press .umich .edu

michigan

The Jurisprudence of Emergency

Law, Meaning, and Violence The scope of Law, Meaning, and Violence is defined by the wide-ranging scholarly debates signaled by each of the words in the title. Those debates have taken place among and between lawyers, anthropologists, political theorists, sociologists, and historians, as well as literary and cultural critics. This series is intended to recognize the importance of such ongoing conversations about law, meaning, and violence as well as to encourage and further them. Series Editors:

Martha Minow, Harvard Law School Elaine Scarry, Harvard University Austin Sarat, Amherst College

Narrative, Violence, and the Law: The Essays of Robert Cover, edited by Martha Minow, Michael Ryan, and Austin Sarat Narrative, Authority, and Law, by Robin West The Possibility of Popular Justice: A Case Study of Community Mediation in the United States, edited by Sally Engle Merry and Neal Milner Legal Modernism, by David Luban Surveillance, Privacy, and the Law: Employee Drug Testing and the Politics of Social Control, by John Gilliom Lives of Lawyers: Journeys in the Organizations of Practice, by Michael J. Kelly Unleashing Rights: Law, Meaning, and the Animal Rights Movement, by Helena Silverstein Law Stories, edited by Gary Bellow and Martha Minow The Powers That Punish: Prison and Politics in the Era of the “Big House,” 1920–1955, by Charles Bright Law and the Postmodern Mind: Essays on Psychoanalysis and Jurisprudence, edited by Peter Goodrich and David Gray Carlson Russia’s Legal Fictions, by Harriet Murav Strangers to the Law: Gay People on Trial, by Lisa Keen and Suzanne B. Goldberg Butterfly, the Bride: Essays on Law, Narrative, and the Family, by Carol Weisbrod The Politics of Community Policing: Rearranging the Power to Punish, by William Lyons Laws of the Postcolonial, edited by Eve Darian-Smith and Peter Fitzpatrick Whispered Consolations: Law and Narrative in African American Life, by Jon-Christian Suggs Bad Boys: Public Schools in the Making of Black Masculinity, by Ann Arnett Ferguson Pain, Death, and the Law, edited by Austin Sarat The Limits to Union: Same-Sex Marriage and the Politics of Civil Rights, by Jonathan Goldberg-Hiller From Noose to Needle: Capital Punishment and the Late Liberal State, by Timothy V. Kaufman-Osborn Communities and Law: Politics and Cultures of Legal Identities, by Gad Barzilai The Jurisprudence of Emergency: Colonialism and the Rule of Law, by Nasser Hussain

The Jurisprudence of Emergency Colonialism and the Rule of Law

Nasser Hussain

The University of Michigan Press Ann Arbor

Copyright © by the University of Michigan 2003 All rights reserved Published in the United States of America by The University of Michigan Press Manufactured in the United States of America c Printed on acid-free paper 2006

2005

2004

2003

4

3

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1

No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, or otherwise, without the written permission of the publisher. A CIP catalog record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Hussain, Nasser, 1965– The jurisprudence of emergency : colonialism and the rule of law / Nasser Hussain. p. cm. — (Law, meaning, and violence) Includes bibliographical references and index. isbn 0-472-11328-3 (cloth : acid-free paper) 1. War and emergency legislation. 2. Sovereignty. 3. Rule of law. 4. Colonies—Law and legislation. I. Title. II. Series. k3344 .h87 2003 340'.11—dc21

ISBN13 ISBN13

978-0-472-11328-6 (cloth) 978-0-472-02351-6 (electronic)

2003005027

To my parents and Omar

Contents

Acknowledgments Chapter 1.

Introduction: The Historical and Theoretical Background

ix 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

Martial Law and Massacre: Violence and the Limit

99

Chapter 4. Conclusion

A Postcolonial Postscript

Appendix A The Administrative Structure of Justice in British India Appendix B

133 145

The History of Nineteenth-Century Legal Codification in British India

149

Notes

153

Bibliography

175

Index

185

Acknowledgments

This book began as a dissertation at the University of California, Berkeley. My thanks to all of my teachers there: Tom and Barbara Metcalf, Tom Laqueur, David Lieberman, David Lloyd, Eugene Irschick, and Martin Jay. Thank you to the Harvard Society of Fellows, and in particular Amartya Sen, for offering me time and space to work. I completed this manuscript at Amherst College, and I thank my colleagues in the Department of History and the Department of Law, Jurisprudence, and Social Thought. My colleagues and dear friends in the latter department, Lawrence Douglas and Martha Umphrey, read and commented on the manuscript, and I thank them both. In particular, I would like to express my great gratitude to Austin Sarat for his constant support and his dedication to nurturing the work of junior scholars. The Henry R. Luce Foundation not only underwrote my position at Amherst College but also was generous in support of further research. Thank you also to Lisa Raskin, the Dean of Faculty at Amherst College. Melissa Ptacek and James Martel have been constant interlocutors throughout this undertaking and I thank them for their intellectual and emotional support. Thanks to many other friends: Dipesh Chakrabarty, Jennifer Culbert, Faisal Devji, Tom Dumm, Peter Goodrich, Piyel Haldar, Uday Mehta, Peter Rush, and Alison Young. An earlier version of parts of chapters 1 and 4 appeared in Law and Critique 10 (1999). Thank you to that journal and to Kluwer Academic Publishers for permission to reprint.

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.”1 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

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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.”2 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

Historical and Theoretical Background

3

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.3 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.4

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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.”5 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.6 “Dissent” and “disobedience,” however, remained a perceived and actual fact of colonial governance even before the arrival of national-

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ism. 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.7 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.8 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.9 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

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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.10 Orientalism itself drew on the ideas of Michel Foucault, who along with Said has become a ubiquitous reference in colonial studies.11 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.”12 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

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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.13 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.14 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.15 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

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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.16 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.17 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.”18 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.”19 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.20 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. And so it is with a rule of law, which increasingly

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appears as a conceptual frame to be variously filled in. In the twentieth century, the putative contents of the term have thus widely differed. According to Joseph Raz, matters have gotten so out of hand with the “promiscuous use” of the expression that “we have reached the stage in which no purist can claim truth on his side.”21 Raz’s lament, however, does point to a critical dimension of the notion of a rule of law, which I will argue is better understood as a historical ideal and not just a set of fixed propositions. Even so, it could be argued that in the racially segregated and socially stratified arena of the colony, to criticize a rule of law may seem not unlike pushing at an open door. Indeed, if the rule of law is at the very least about the old law-school dictum of treating like cases alike, it would seem that no such claim can be made for the colonies. In British India, for example, a whole range of special exemptions and statuses divided the legal domain, not only by race (Europeans and natives) but also by religion (Muslims and Hindus subject to their own personal law). Earlier, law under the East India Company State had divided the population into classes of juridical subjects and divided itself into public law and personal law. There was, however, an additional division, as there were two types of courts—Crown and Company courts—each with a separate jurisdiction. While the Company court claimed jurisdiction over natives in the mofussil (countryside) and provided higher courts of appeal in the form of the Sadr Adalats, the Crown’s jurisdiction was held over all residents of the presidency town and only over British subjects residing in the mofussil (see appendix A). Not only did the British feel compelled by social pressures to administer an increasingly static religious law to their subject communities, a move largely of their own devising, but they used this division of personal law to justify special privileges on racial grounds. In the later nineteenth century when Western-educated natives and liberals in government joined in their demand for the removal of racial bars to the covenanted civil service, including the judiciary, Fitzjames Stephen could insist that “personal as opposed to territorial laws prevail here on all sorts of subjects. I think there is no country in the world from whom a claim for absolute identity of law for all persons of all races and habits comes with as bad a grace as from the natives of this country.”22 And yet we shall return repeatedly to Stephen’s impatience with, indeed, antipathy toward bland invocations by the colonial govern-

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ment to an oriental despotism of rule. Stephen would insist that all authority including the need for discretionary power be allotted by and fixed in regular law. Are we to read these insistences as so many examples of bad faith? Or would it be more productive if we took Stephen at his word and tried to understand what is meant by rule of law as a mode of governing in the colonies? Here we see Stephen as the interlocutor of modern law in its essence—a form of self-referential authorization elastic enough to cover all exigencies. In his Minute on the Administration of Justice in British India, for example, Stephen considered the question of whether rules and codes were suitable to the rough and rugged colonial frontier. Emphatically insisting that the question was really about—indeed, had to be about—different kinds of legal administration, and not about “government by law and government without law,” Stephen called for an effort “to unite by law all authority in one hand, to give by law wide individual discretion.”23 Stephen’s confidence in the elasticity of law would prove overly optimistic when faced by insurgency and emergency. But for us that only again poses the question of what the claim of a rule of law contains; whether it is not, in fact, better understood as a specific form of rule. The latter effort would commit us to understanding the rule of law beyond its contemporary association with democratic freedom and just rule, forcing us instead to consider the historical construction of such a category in the articulation of a modern political rationality. Again, let me stress for the sake of clarity that such a historicist critique does not in itself amount to a challenge, much less a denial of the value and justice of certain ideas that we now associate with the rule of law. We can agree with, for example, the proposition that political power must be accountable, but such an agreement has limited value in increasing our understanding of the historical emergence of a rule of law, the conditions of its operation and limits. One historical study that is by now a justly famous reference for any study of the rule of law and its limitations is E. P. Thompson’s Whigs and Hunters: The Origins of the Black Act. The book, as the preface informs us, begins with Thompson’s casual commitment to an article on the draconian “Black Act” of 1723, passed in response to increasing poaching and deer killing in the royal forest of Windsor. But general questions of the form and function of law seem to muddle, with some regularity, any specific subject and conclusion, and convert Thomp-

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son’s informative article into an expansive “experiment in historiography.”24 The results of that experiment have received much attention, particularly the conclusion where the Marxist historian, after hundreds of pages of passionate criticism, concedes that the law, while partly the vehicle of a mystifying ideology and of class interests, cannot be reduced to those terms. It is a conclusion we shall consider shortly. First, it is worth dwelling briefly on some of the methodological substance of the text itself, which offers valuable lessons on studying law and emergency. The paramount lesson is a critical stance on the normative presumptions that structure both emergency and subsequent historical readings. Here it is the figure of tautology that rushes in and threatens to foreclose critique. Emergency offers its justification under this figure: for the question of why the law required such large powers to establish order, the answer—indeed, the only answer—can be the level of disorder that confronted authorities. Thompson notes that this tautology, although that is not his vocabulary, absorbs all historical understanding: “Successive historians have scarcely advanced upon this: since the Act was passed, it may be assumed that it was necessary to pass it.”25 Indeed, it is the singular insight of Thompson’s work to reveal the historical construction of the normative itself. As Thompson himself conceded, it may have been “wise to end here,” but the rule of law as a standard seems to demand some more general conclusion. Thus appears Thompson’s concluding, somewhat begrudging, concession that the law of a ruling class does indeed from time to time go against its interests. Most men have a strong sense of justice, at least with regard to their own interests. If the law is evidently partial and unjust then it will mask nothing, contribute nothing to any class’ hegemony. The essential precondition for the effectiveness of law, in its function as ideology, is that it shall display an independence from gross manipulation and seem to be just. It cannot seem to be so without upholding its own logic and criteria of equity, indeed, on occasion, of actually being just.26 This is actually a rather anodyne conclusion, and unless one heatedly argues over specific terms such as interest or justice—an argument I shall not enter here—there is really little to disagree with. What is for

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me both more curious and more poignant is a moment of autobiographical presentation in the conclusion. Here we find Thompson worried not so much about the specific merits of his work but more generally with the issue of writing a history of the rule of law in our historical time of staggering exploitation and atrocity. What, he wonders, is “the contest over interior rights . . . when set beside the exterior record of slave trading . . . or of the East India Company”?27 But, of course, when one moves from the historical narrative to a historiographic questioning, as Thompson does in his conclusion, colonialism and fascism, Europe’s Other and its own limit, can and must enter the story. For it is this other history that shapes the present from which one even begins to consider the possibilities and predicaments of modern law. But I think the inclusion of colonialism and fascism in this larger story are more deeply indicative, for they point to the necessity of considering the question of sovereignty in any account of the rule of law. Here at least a provisional definition of modern law is clearly required, but settling on some central characteristic out of the array of theories that emphasize law as natural or positivist, formal-institutional or sociological, and so on, is no easy matter. If there is a point of agreement, it is that the content and character of modern law are essentially normative. That is not only to say that law consists of rules stipulating expected behavior but also that such rules are themselves validated out of a theory of power that is itself normative, that inscribes itself deep into social life and seeks its legitimacy and validity by regulating that life in an expectant and improving direction. In such a normative universe of law, then, to raise the question of sovereign power is to invoke the figure of the archaic. A theory of sovereignty may help us understand the prerogatives of kings or the ritualistic majesty of emperors and “despots,” but it seems to have no bearing on understanding modern law and power. And this is equally true of those who would celebrate the normative rule-bound universe of modern power, as it is of those who would subject such modern normativity to a skeptical critique. Let us identify the first position with the work of H. L. A. Hart and the latter position, much more equivocally, with the work of Michel Foucault. Hart’s book The Concept of Law is an effort to refashion legal positivism, precisely moving it away from a preoccupation with sovereignty, from John Austin’s notion of law as the “command of the sov-

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ereign,” and toward a theory of rules. Particularly relevant for our purposes here is the way in which sovereignty in Hart’s schema is reduced entirely to a framework of rules. These rules, Hart contends, are not just descriptive of the sovereign and those who obey him but are fundamental and constitutive. In a significant passage in The Concept of Law, Hart attempts to show how the notion of sovereign orders virtually disappears in the rulebound format of a modern electoral democracy. Framing the explanation in the vocabulary of a developmental schema, which subtends much of the text, Hart argues that in the case where the sovereign is identifiable with a single person, it may be possible to concede that the rules of governance (for instance, that orders must be declared and signed by the monarch) exist in a descriptive mode. But in the more disseminated form of the electorate—indeed, in the case of procedures that members of a society must follow in order to function as an electorate in the first place—rules “cannot themselves have the status of orders issued by the sovereign, for nothing can count as orders issued by the sovereign unless the rules already exist and have been followed.”28 Such a circularity of logic and process effectively occludes the possibility of action outside the circle. For Foucault the normative force of modern life and the power relations it exhibits are best understood not in the interdictory mechanisms of law but in the disciplinary functions of the social. This form of biopower, as we are shown in the now famous last chapter of the History of Sexuality, appears at the site of a historical disjunction, as it “supplants” older juridical modes and models of power.29 It is important to be specific here: for Foucault what is supplanted is not law but a form of sovereignty that he calls the juridical. In the new regime, law in its modern sense as a functioning of norms is pervasive.30 Rules are now required across an entire terrain of life, and legislation proliferates, as do the institutions of bureaucratic government. Two years after the initial publication of the History of Sexuality, Foucault returned to this threshold shift in his lecture “Governmentality,” delivered in 1978 at the Collège de France.31 This time around, Foucault cast the movement in more subtle, indeed, even more equivocal terms. Accordingly, he asks us not to think of this movement from a society of sovereignty to one of discipline and then government in terms of “replacement,” but rather to conceptualize the modern as a “triangle”

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of “sovereignty-discipline-government, which has as its primary target the population and as its essential mechanism the apparatus of security.”32 The concept of the norm occupies a central organizing function within this schema. It refers both to normativity as a conception of standards and to a process of normalization, which appraises, regulates, and relates diverse activities. In addition, as François Ewald correctly notes, “Foucault also compels us to reconsider what we mean by norm, which he places among the arts of judgment. Undoubtedly, the norm is related to power, but it is characterized less by the use of force and violence than by an implicit logic that allows power to reflect on its own strategies and clearly define its objects.”33 This astute assessment of Foucault’s work also perhaps unwittingly points to its omissions. Foucault does not dwell on the relation between this normative conception of power and the decidedly antinormative enactments of sovereign might. Nor does he demarcate the social field from which this norm is generated and that it seeks to regulate. Is this terrain, for example, the recognizable unit of the nation-state, or is it a more politico-philosophical space of the “West”? Here the limits of Foucault’s work for a history of emergency, particularly colonial emergency, begin to reveal themselves. Indeed, postcolonial critics who have embraced and been energized by Foucault’s work have nonetheless noted the particular omissions of colony and empire from the epistemic shifts he so assiduously sought to document. This is not to be merely tendentious—no critic, after all, can be expected to cover everything—rather it is merely to note that despite Foucault’s interest in the development of spaces of confinement, he never thoroughly investigated the construction of the epistemic space of the West itself as putatively self-contained and self-generative. The implications of this insight are various, for as we shall see it helps us to isolate the particular function of race in the colony, but here we may confine ourselves to the neglect of sovereign will and violence. It is not, of course, as if Foucault neglects the issue of security in the modern state. In fact, he places the apparatus of security, along with the new target of population and the new operational knowledge of political economy, in his central definition of modern power. But by confining his attention to the interior developments of the European state, Foucault is perhaps unsurprisingly led to formulate this apparatus in

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terms of surveillance and the police.34 He thus has little to say about the relation between the sovereignty of the state and the new forms of law, or the limits to the functioning of the normative itself. One theorist who has questioned this relation in decidedly antinormative terms is Carl Schmitt. This is a controversial choice, for Schmitt was to follow up his work as a jurist in the Weimar regime with a shift in allegiance to National Socialism. For this reason, the connection between Schmitt’s work in the Weimar regime and his career between 1933 and 1936 is a source of much historical debate. The reading of Schmitt that I propose here moves along a particular biographical and intellectual trajectory, distinguishing his earlier work from his views in the 1930s. This would not be an isolated endeavor. Joseph Bendersky, for example, has argued for a reading of Schmitt’s work that does not reduce all of Schmitt’s ideas to his Nazi career from 1933 to 1936.35 Others, Martin Jay among them, have maintained that Schmitt’s notions of the structural friend-foe distinction in politics and the decisionist role of the sovereign in states of emergency may be traced to the Nazi demonization of Jews and the use of Article 48 of the Weimar constitution to subvert the fledgling democracy.36 Recently, Agostino Carrino has further fractured this biography, delineating “three Schmitt’s” by insisting on the disjunction between not only the Schmitt of the early twenties and the Nazi era but also between the Schmitt of 1936 and 1943.37 Schmitt’s Political Theology (1922), the main text of interest to us, belongs to the earlier period and opens with a succinct definition of sovereignty: “sovereign is he who decides on the exception.”38 This definition contains Schmitt’s interest in the personal element of the decision and in the agonistic and borderline relation of exception and norm. We will consider Schmitt’s ideas more fully in the following section, but here let us note that this decision as the expression of will is what is disavowed in the norm-bound realm of a rule of law, and it is this object and the process of its disavowal that we must attend to. In order to do so, let us explore some of the connotations associated with the expression a rule of law through a grammatological gesture: by focusing on the choice of preposition that constructs the phrase—a rule of law not a rule by law. Of course, one could say that the original and longer version of the expression was a rule of law and not by men, but the shorthand we are left with—rule and law joined by a preposition in the genitive case—is still telling. For unlike the use of by, which, as the

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Oxford English Dictionary tells us, must be coupled with nouns of agents and action, the use of the genitive preposition links one part to another as both source and possessor. Eclipsing agents and action, the rule of law evokes a hermeneutic insularity, a ghostlike landscape where law rules and rules are law. In fact, it is only because of the critical labor performed by the preposition that an inversion of the phrase can still generate an adequate meaning, such as when Antonin Scalia instructs us to understand a rule of law as a law of rules.39 Indeed, the ghostlike landscape I invoke here is not inappropriate. It certainly catches the sense in which a rule of law reflects the high postulates of Western civilization: the victory of reason over will, the universal over the contingent, and idea over matter.40 If the ethereal images of distance, mediation, and universality are embedded in the expression the rule of law, they are entirely opposite of the images associated with emergency: direct force, singular cases, final judgments, and so on. Emergency Approaching the concept of emergency, one encounters a similar definitional quandary as with the rule of law but for the opposite reason: if a rule of law has been overtheorized, made to stand in for a range of ideas, the concept of emergency and its relation to the norm seems comparatively undertheorized. Such neglect is curious indeed, given the constitutive role emergency plays alongside the rule of law in the conception of modern sovereignty. The notion that a situation of factual danger, whereby the existence of the state is threatened, allows for the suspension of the normative universe of a rule of law is provided for in almost every account of modern lawful rule. These moments invoke what one could call the “but for” clause, by which the supremacy of regular law is continuous but for the requirements of state sovereignty. An allowance for such moments is written into nearly all conceptions of lawful and legitimate government: one finds its shadowy presence as much in Locke’s Second Treatise, in the section on “prerogative” that Locke defines as the “power to act according to discretion, for the publick good, without the prescription of the law and sometimes even against it,”41 as in the famed book 11 of The Spirit of the Laws, where Montesquieu qualifies the conditions of “Political Liberty and the Constitution”—the absence of discretion, and the separation of execution

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from judgment—with an exception: “but if the legislative power believed itself endangered by some secret conspiracy against the state,” and so on.42 Indeed, one can find such an allowance in most modern constitutions, and even in the United Nations International Covenant on Civil and Political Rights, in the form of “derogation provisions.” It is remarkable how a closer scrutiny of most major texts of political theory and constitutional jurisprudence reveals emergency as a constant third term in discussions of law and state. In our century, most historians and scholars are familiar with the statutory forms of emergency rule such as the Defense of the Realm Acts. But the notion of a provision for the state to have recourse to exceptional powers is a deeper one in the history of law. In the struggle against absolutism in the West, it represents the division between law and the ruler’s will. Emergency is an elastic category, stretching over political disturbances such as riots, the situation of sovereign war, and even constitutional crises within the sphere of the state. The texts of jurisprudence and political theory are unanimous in their recognition of these moments of exception. Here the law knows that it will not be sufficient, that something else will be required. Indeed, legal systems in their theoretical and practical formulation are curious in the way they deliberate upon the conditions of their own failure. One is tempted to say that there has been a general neglect of the whole issue of emergency, but that is not quite accurate. There is, in fact, a decent size literature on the topic of emergency powers, on the issue as it is often framed of “civil liberties during wartime.”43 Rather, what has received less attention is the indicative function of emergency as a constitutive relation between modern law and sovereignty, and thus as a formative kernel in the overall understanding of modern power. Let us attempt to draw out this important distinction. Particularly following World War II, there was a burst of intellectual activity, prompted by not only the fate of Weimar Germany and the question of law under fascism, but also by the wartime actions and excesses of the Western democracies. To consider one prominent example, in 1948 C. L. Rossiter published his extensive study of emergency powers in France, Germany, Britain, and the United States, under the trenchant and by his own admission “disturbing” title of Constitutional Dictatorship.44 This was, of course, Rossiter’s shorthand term both for the principle that during times of crisis no constitutional regime can

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function constitutionally and for the actual range of powers that such regimes utilized. Certainly, for Rossiter, if a close examination of such a principle was ideologically distasteful, the ubiquity of the subject was nonetheless undeniable. No person professing the democratic faith can take much delight in a study of constitutional dictatorship; the fact remains that it has been with us exactly as long as constitutional government, and has been used at all times, in all free countries, and by all free men.45 If the last clause, with its emphasis on free men, leads us to think that Rossiter’s text has little relevance for the decidedly unfree rule of colonialism, it is important to recall that Constitutional Dictatorship is largely preoccupied by the space of “emergency” in a modern form of normative rule. The labor of Rossiter’s text, then, is dedicated to demonstrating the necessity of emergency powers and the need for their vigorous containment. Accordingly, the cases in which such powers may be invoked and the forms that they may assume must be delineated upfront and with precision. Rossiter tells us that there are really only three types of crisis—war, rebellion, and economic depression—that justify invoking emergency powers.46 The form of emergency powers is more difficult to bracket, but may generally be identified as the assumption of martial rule, the delegation of legislative powers to the executive, and the large-scale intervention in economic and/or political liberties.47 For our purposes, these efforts at containment are particularly telling, for ultimately, I think, they prevent Rossiter from confronting the constitutive paradox of the norm itself, forcing him to view emergency as an unfortunate but periodic lapse. The goal of constitutional dictatorship then is “simply this and nothing more: to end the crisis and restore normal times.” One cannot help but wonder, however, if this return of the normal is so unaffected by the crises that periodically interrupt it. What happens to the qualities of certainty and finality, if they can and must operate under the presumption of their suspension? Given that Constitutional Dictatorship is an erudite and subtle book, one can only imagine the strong and unspoken ideological pressures that prevented its author from considering the full implications of his own thesis. Not that such a consideration is entirely absent; it appears

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through a couple of ciphers. First, Rossiter admits that no democracy underwent a period of emergency rule “without some permanent and often unfavorable alteration in its governmental scheme,”48 although he is at pains to confine this alteration to the formal distribution of power (so, for example, wartime powers generally leave the executive with more control); second, Rossiter does draw on what he calls the “trailblazing” work of Carl Schmitt and his more constitutive level of questioning the relation between norm and exception, but confines himself largely to Schmitt’s examination of sanctioned autocratic power in his 1921 study, Die Diktatur.49 Let us then move ahead of Rossiter and consider the question of emergency as not just a regulative problem of periodic crisis, but a jurisprudential problem in the understanding of modern law and state. To do so let us reiterate Schmitt’s intriguing definition of sovereignty: “sovereign is he who decides on the exception.” Schmitt’s understanding of the exception is related to a state of emergency, a situation of economic and political crisis that imperils the state and that would require the suspension of regular law and rules to resolve. But as Schmitt repeatedly emphasizes, this situation of danger can never be exhaustively anticipated or codified in advance, and thus the suspension of the law would have to be the result of a conscious decision. Schmitt’s formula of the sovereign decision does indeed involve a conceptual paradox in the relation between norm and exception, but it is also first and foremost a highly decisionist and personalistic formula. One way to gauge this is to take yet another look at Political Theology and notice how much the decision on the exception, which cannot be codified in advance, and normatively “seems to emerge out of nothingness,” is nonetheless linked to very specific and actual conditions. Internal or external threats to the state, severe economic conditions, all provide possible examples of the conditions for the decision on the exception. The key word here would seem to be possible—but we must remember that simply because the conditions cannot be listed in advance does not mean that the decision does not respond to an empirical reality. Simply because the decision cannot be circumscribed factually does not mean that it itself is not factual. The inability to anticipate or to legislate the conditions that would require the decision means that it cannot be subsumed into the normative. A lack of normativity is not the same as a lack of materiality or particularity. Indeed, it is the

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unequal exchange between the general and the particular in the normative—“the necessity of judging a concrete fact concretely even though what is given as a standard for judgment is only a legal principle in its general universality”50—that provides for Schmitt the legal interest in the concept of the decision even before we arrive at a decision on the exception. Interestingly the decision on the exception appears to be as much a decision on normal conditions as it is on those abnormal conditions that would require a suspension of legal order. Thus Schmitt declares, “For a legal order to make sense, a normal situation must exist, and he is sovereign who definitely decides that such a normal situation actually exists.”51 This is a moment in Schmitt’s text that is worth dwelling on— the normal is as much a result of a personalistic decision as is the exceptional, but it is thus crucial to the overall understanding of sovereign power. Norm and exception, as I hope to show in the following chapters, function in juxtaposition, in an arrhythmic register of sorts. Schmitt’s concept of the exception then offers more theoretical value than the specific historical exigencies to which it was posed as an answer. This decision and the space of exception that it brings forth take us to a “borderline concept” that contains the “whole question of sovereignty.”52 In this antinormative decision, Schmitt insists, there “resides the essence of the state’s sovereignty, which must be juridically defined correctly, not as the monopoly to coerce or to rule, but as the monopoly to decide.”53 At its core, we may read it as an alternative conception of power, one that is decisionist and antinormative. It cannot, of course, survive without the concept of norm that it subtends and is parasitical upon, but that only leaves the matter more relational, more foundational, and ultimately more urgent. I would argue then that it would be an error to consider the state of emergency as categorically outside the rule of law. After all, even in legal systems with a constitutional provision for the exception, such as the German case of Notrecht, we should not move too quickly over the peculiar way in which law contemplates and provides for its own failure. Indeed, whether one considers the word emergency and the way it contains within itself the interior sense of the emergent or one considers the exception (ex capere [taken outside]) that attempts to spatialize the situation of danger as outside the rule, there is always a question of relation. Giorgio Agamben has recently caught this relational peculiar-

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ity with astute precision: “The particular ‘force’ of law consists in this capacity of law to maintain itself in relation to an exteriority. We shall give the name relation of exception to the extreme form of relation by which something is included solely through its exclusion.”54 In the case of English jurisprudence, there is an additional and historical reason for not placing emergency outside of regular law. One of the more consistent historical strains in English jurisprudence was the disavowal of any prior authority or category for emergency measures. No one is more emphatic about this than the great constitutional authority of the nineteenth century, Albert Venn Dicey: “We have nothing equivalent to what is called in France the ‘Declaration of a state of siege,’ under which the authority ordinarily vested in the civil power for the maintenance of order and police passes entirely to the army (autorité militaire). This is unmistakable proof of the permanent supremacy of the law under our constitution.” The twin emphases of the Introduction to the Study of the Law of the Constitution are the theoretically unlimited power of Parliament and the restraint of a rule of law. The potential contradiction between these two facts was noted and critiqued from the initial appearance of Dicey’s work. If the supremacy of Parliament was itself a legal principle, it was pointed out, then there could be no opposition between governmental power and “regular law.” Thus Sir Ivor Jennings felt that Dicey’s emphasis on the rule of law was more a “principle of political action” and not a “juridical principle”—it was more about a Whiggish distrust of large governmental powers.55 Dicey, of course, was himself well aware of the potential for contradiction. Thus in the somewhat tortuous chapter 13 of the Law of the Constitution, he argued that the constitutional solution of the sovereignty of Parliament was not “a merely formal one, or at best only a substitution of the despotism of Parliament for the prerogative of the Crown.”56 An act of Parliament was subject to the interpretation of the judges, who in turn were independent of political influence. The limitation of judicial interpretation, however, did not constitute a prior bar to the power of Parliament to enact whatever it wished—to make, as Sir Leslie Stephen had speculated, blue-eyed babies illegal. Dicey’s ultimate answer to skeptics like Stephen was purely conventional: such an abuse of power had no particular check upon it, but would never really happen in Britain. Through an irony of history, however, it turned out that even in

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his own lifetime Dicey was faced with the effects of the power he had ascribed to Parliament. The issue, appropriately enough, was a colonial one: an unthinkable prospect to an ardent Unionist such as Dicey of the Home Rule Bill in 1913 (legislating home rule for Ireland). R. F. V. Heuston summarizes what followed: “At first Dicey sought for some means within the boundaries of the constitution for preventing Parliament from exercising the powers he ascribed to it in his Liberal days, and made some very ill-advised suggestions about the power of the monarch to force a dissolution or refuse his assent to the Bill; but eventually in desperation he jettisoned the constitution and pledged himself to armed resistance to lawful authority: he signed the Ulster Covenant.”57 It could be argued here that Dicey’s disagreement with the Home Rule Bill was precisely a political and not a juridical issue, but such a response would, I think, miss the particular ambiguity of the situation. To the extent that the sovereignty of the state (which we must remember is not only about the legal authority of the state to exercise its power but more primarily about the state’s obligation to maintain its territorial and institutional integrity) is unlimited, and is figured as logically prior to the law that the state submits to and uses to articulate its legitimacy, the potential for conflict between the two concepts is both enduring and real. To insist, then, that sovereignty is only a legal relation is to overlook the exercises of power that states resort to in certain conditions that are explicitly recognized as “beyond ordinary law.” Emergency is the name we shall give to the sign of a certain relation between modern law and state, one that appears in dramatic relief in the historical instance of colonialism. Colonialism The third and final term that makes up my title serves, of course, as the historical object of analysis and also as a theoretical copula: the term whose function it is to connect the problematic of emergency with the theory of a rule of law. And as with my caveats about the difficulty in definitionally bracketing those terms, this third term in no exception. As Nicholas Thomas has argued in Colonialism’s Culture, the word colonialism conjures up a repertoire of cultural images—“Lindt’s melancholy aboriginal, the White Man’s burden, darkest Africa”—but lacks

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any stable and totalized referent.58 Colonialism is both place and process, a world-historical system that registers in different modes at different times. In the modern period, therefore, one can speak of seventeenth-century discovery and trade, or settler colonialism, or concepts of conquest, but in all of these there is a temporal bracketing that crucially coincides with fundamental politico-legal changes in the West itself. The period from the early seventeenth to the late eighteenth century marks England’s increasing presence in the world, through the extension of trade and the acquisition of colonies, from the consolidation and eventual loss of the first empire primarily to the west, to the firm beginnings of the second imperial project in the east. This period, of course, also witnesses England’s own profound political crises and constitutional changes: revolutions, civil war, restoration and acts of union, and a comprehensive revision of the forms of sovereignty, from the absolutist aspirations of the Stuarts to the “King in Parliament” solution. Explicating the interconnected effects between these two coincident historical processes, much less their causal relation, is no easy matter. And yet, it is worth reiterating the basic coincidence between colonial expansion and domestic constitutional change, because it highlights the complex interconnections that mark these discourses. From the very beginning of the modern period, in a complex genealogy itself proleptic of a later colonial discourse on emergency power and legitimate rule, expansion and conquest are inscribed into the specific historical struggles in the West against an absolutist sovereign power. Conquest only added to the claims of an absolutist monarch and thus had to be addressed as part of the effort to curb such power through the invocation of long-standing law and rights. Of all the topologies brought to bear upon the arguments of law and colonialism, conquest was perhaps the one most multifarious and resonant in an English political imagination. Conquest was a construct of political theory, a specific legal category, and, perhaps most important, a term of considerable historiographical contention. For the early-seventeenthcentury common lawyers Coke, Hampden, and Pym, the argument against the increasing scope of a sovereign monarchy was an insistence on the rights of Englishmen derived from immemorial custom, and the laws derived from an “ancient constitution.”59 The need for such a rhetorical maneuver also arose because it was generally conceded by

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jurists at this time that a legitimate and absolute sovereign power accrued to a conqueror. Conquest was not a new legal category of learned Europe: medieval scholarship had already elaborated the concept during the European expansions into the Baltic and Levant.60 And then, of course, there was that other law and other empire, which the British were so acutely aware of as their antecedent, if not their model—Rome. Within Roman law, the learned law of Europe after the twelfth century, a conqueror gained a lawful power of life and death over his vanquished—vitae et necis potestatem. The fusion of medieval and Roman legal thought had thus produced by the Renaissance a coherent body of work on the legal implications of conquest. Two separate schools of thought began to emerge based on the question of contact between Christians and non-Christians: the tradition of Innocent IV, which accepted the property rights of nonbelievers, and the school of Hostiensis, which accorded no property privileges to heathens and was crucial to the ideological construction of Spain’s work in the New World.61 A connection that Pocock tends to overlook is that the earlyseventeenth-century English common lawyers’ denial of William’s status as conqueror was equal to their theoretical acceptance of the absolute power of a conqueror. Indeed, in England the very first judicial formula for the powers accrued by a conquest appear in the famous opinion of Lord Coke against the claims of James I in Calvin’s Case or the Case Postnati (1608).62 Into the eighteenth century, the more important British judicial decisions that shape the scope of the constitution—Lord Mansfield’s decisions in Campbell v. Hall and Mostyn v. Fabrigas in particular—are on cases that arise out of colonial situations.63 These cases, which involve efforts to curtail the use of a wide monarchical prerogative in the colonies, force one to ask why discussions of prerogative and restraint are taking place a full century after the putative resolution of those issues in the seventeenth-century revolutions. The colonies here become the site for both the manifestations of contradictions embedded in the British constitution and the alternative locale for elaborating on these questions of power and restraint. Edmund Burke with his usual acuity noted the truth of this entanglement even before it was fully evident. “I am certain,” he insisted, “that every means effectual to preserve India from oppression is a guard to preserve the British constitution from its worst corruption.”64

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The example of this study is drawn from British India, but the Indian enterprise itself represents a particular process that begins in the late eighteenth century. Historians often refer to this British Empire, focused primarily eastward after the loss of the American colonies, as the second empire. P. J. Marshall identifies its main features for us. The British Empire of the later eighteenth century ceased to be an empire largely composed of communities of free peoples of British origin tied to Britain by trade regulations and naval power. It was now an empire including numerous peoples who were not British in origin and who had been incorporated into the empire by conquest and who were ruled without representation. It was an empire sustained not just by the Royal Navy but by the deployment of British troops across the world in a way that was to last until the 1960s.65 This is a largely accurate picture, although one painted in broad strokes. Of course, if one recalls the West Indian and Southern plantations, conquest and race were hardly absent from the first empire. But the key difference was that in these colonies the race question was firmly tied to slavery. The nineteenth-century empire, covering India, and later Africa and the Middle East, consisted of people who were not slaves but, because deemed utterly incapable of participating in their rule, were not quite free subjects either. This empire required a new conception of sovereignty, one that was neither despotic nor democratic. And for such a historically specific reason, it was in this empire that law in general, and the problematic of a rule of law and emergency in particular, assumed a greater ideological weight. Of course, these transformations of rhetoric and ideas are inextricably taking place within a transformation of economic and political forms of trade and governance. Moreover, by the nineteenth century these forms are global in dimension. Thus Roberts and Mann, in surveying law in colonial Africa, stress the ways in which “early nineteenth century transformations in the balance of legal power between Africans and Europeans was not unique to Africa, but rather formed a part of a world wide process of the establishment of consular jurisdictions.”66 They point out that missionaries, officials, traders, all are increasingly unanimous in their belief that the spread of “western legal arrangement was necessary to the growth of trade and civilization.”67

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These latter two terms, however, remain far from static. Not only does the concept of trade move away from a discourse of mercantilism to one of “free trade” but also enters a new symbiotic relationship with a now more evolutionary concept of civilization. This means nothing short of the fact that from the eighteenth century onward, the “colonial” operates in a new field of power and with new and privileged sites for its application. If, as Foucault emphasized in his lecture on governmentality, “the essential issue in the establishment of the art of government [was the] introduction of economy into political practice,” the colonial discourses of the eighteenth and nineteenth century bear out his claim in explicit ways. The old monopoly charters of the East India Company, for example, are challenged in an idiom that echoes the challenge to absolutist power. The East India Company, in its peculiar guise of merchant-as-sovereign, brought together questions of monopoly trade and of colonial governance. The periodic renewal of the Company’s charter would consistently open up a floodgate of pamphlets, petitions, and inquiries, right up to the Charter of 1813 by which the Company lost its trading monopoly and finally the Charter of 1833 by which act it ceased to be a trading corporation altogether. This story of Britain’s increasing connection with India in the eighteenth century is a complicated, indeed, labyrinthine one, and here I will do no more than introduce it in summary fashion. In 1612, Thomas Roe had received imperial permission from the Mughal court at Delhi to establish a trading factory, and the British had established trading posts on all coasts: Bombay on the west coast, Madras and Cuddalore on the Coromandel or east coast, and from 1690, Calcutta in Bengal. During its early years, the East India Company’s organization reflected its origin and continuation as a primarily commercial venture: civil servants constituted the ascending ranks of writer, factor, junior, and senior merchant. But even at this early stage, the Company was often the target of a pamphlet literature that attacked both the Company’s economic monopoly and its political activities.68 It is, however, in the latter half of the nineteenth century that criticisms of the Company increased in scope and intensity. This, of course, had much to do with the East India Company’s increasing political fortunes in India. Toward the middle of the eighteenth century, against a backdrop of changing political arrangements, the rise of new local states, and Anglo-French rivalries, the Company found itself increasingly involved in political

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and military affairs, and by 1765 was operating under the Diwani (the Mughal imperial sanction to collect revenues). By the third quarter of the eighteenth century then, we have a monopoly trading company ruling large areas in an absolutist manner. No one is clearer on this than Adam Smith. Among the growing number of critics of the East India Company, Adam Smith emerged at this time as one of the more vocal and influential voices. The spread and influence of Smith’s arguments on this topic may be gauged by the concentrated reaction against him. Not only were the arguments of The Wealth of Nations answered by critics in the form of popular pamphlets, but they were also identified in the private papers of the East India Company as a singular target to be attacked.69 The Wealth of Nations, first published in 1776, focused on the East India monopoly as a singular example of bad economics and politics. A monopoly in Smith’s vocabulary is by definition similar to despotism, as it too is a concentration of power without any checks and balances. But a direct consequence of such concentrated power in colonial government is the inability to further local economic interests and thereby foster local loyalties. Such a merchant government then, Smith insists, can “command obedience only by military force, and is therefore necessarily military and despotical.”70 By the time the dissolution of the East India Company monopoly is set in motion, the critique of economic and political power has indistinguishably coalesced. Moreover, the sale of products in the nineteenth century also invokes new sites of application. Anyone even superficially familiar with the evangelical flavor of colonial trade practices knows that selling soap to the natives is never simply just that; it is nothing short of attending to their entire normative conduct and to their very souls, placing them, as the old proverb of “cleanliness is next to godliness” goes, proximate to god. Colonial law operates then in a particular field of power, one that posits new guiding norms and new institutional arrangements. A more difficult answer to pinpoint is how far these conditions of colonial law illustrate the conditions and operations of modern power in general. Certainly, such an answer would be part of an effort that has been exerted by much recent postcolonial critique, which has disassembled the neat divisions between the West and the rest, explicating the productive role of the colonies in the history of the West, in its selfimaginings and identifications. This effort is shared by legal critics,

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who have recently turned their attention to the influence of theories of primitivism and racial difference, particularly in the Enlightenment, on theories of law and government. Notable in this regard is the work of Peter Fitzpatrick, who focuses on one particular purpose of the colonial world: to provide modern law with its constitutive negative—to posit law, nation, and civilization in contrast to custom, tribe, and savagery. In Fitzpatrick’s work we receive the most sustained and erudite demonstration of the role of colonialism and the racial difference it posits as crucial to the condition of our modern law. After all, as the title indicates, The Mythology of Modern Law is not about colonialism but law and modernity. Colonialism, however, becomes the foundation on which the project of modernity is initiated. In Fitzpatrick’s account, the break from a theological transcendence to a secular grounding creates a particular contradiction. The modernity of law is at once the exclusive domain of the West and at the same time universal in its aspirational claims. Such a contradiction is, for Fitzpatrick, resolved through myth. While Fitzpatrick’s work is comprehensive in its demonstration of the foundational role of this racial splitting, his text does less with the continuing effects of this difference on modes of colonial governmentality, and the further reflective effect of those quotidian governmental actions on Western conceptions of rules and law. Partha Chatterjee’s work on the colonial state, on the other hand, poses the question of what is distinctive about colonial power up front. “I will begin,” Chatterjee writes, “by asking the following question: Does it serve any useful analytical purpose to make a distinction between the colonial state and the forms of the modern state?”71 Chatterjee’s answer is an emphatic affirmation of the distinction, of what he calls the “rule of colonial difference.”72 The paramount marker of this difference is, of course, race—a factor that constrains the particular development of the colonial state and colonial power. As one example of this rule and the constant limit it posed to a consolidation of a modern regime of power, Chatterjee turns to a reading of the infamous case, well known to scholars of colonial India, of the Ilbert Bill. That piece of legislation, introduced in 1883 and named for the law member at the time, sought to correct an “anomaly” in the bureaucracy whereby native judicial officers unlike their British counterparts were prevented from trying cases that involved Europeans. The government of Bengal, with which the viceroy and council were at first to agree, decided that there was no “sufficient reason” why

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covenanted civil servants could not exercise this power. More than sufficient reason soon appeared, however, in the form of vociferous and protracted protest on the part of the nonofficial European community. Loath to relinquish its racial privileges, the residents organized protests, boycotts, and even a rebelliously ominous defense league. Ripon, the liberal viceroy at the time, soon backed down, and provisions of the bill were qualified to the point of nonexistence. Here is an example, then of a distinctly modern project of bureaucratic rationalization thwarted by the racialist requirements of colonial state and society. What Chatterjee wants to draw our attention to, however, is the fact that this example is not an isolated instance of the viceroy’s lack of resolve or of the particular exigency of the protest. Rather, this example vividly demonstrates “the inherent impossibility of completing the project of the modern state without superseding the conditions of colonial rule.”73 That is, to the extent that racial hierarchy was the raison of colonial rule, any rationalist effort to remove such distinctions would go toward removing what made such a government “colonial” in the first place. Thus Chatterjee notes that “the more the logic of a modern regime of power pushed the processes of government in the direction of rationalization of administration and the normalization of the objects of rule, the more insistently did the issue of race come up to emphasize the specifically colonial character of British dominance in India.”74 Chatterjee’s reminder of the force of colonial difference is both useful and timely. Indeed, without foregrounding the issue of race, with its attendant moral projects, much of this book’s analysis of the form of emergency would lose its critical edge. But Chatterjee’s insistence on colonial difference does require a caveat: when Chatterjee speaks of race in the colonial realm, he is in fact utilizing a shorthand for a range of differences that runs from eighteenth-century conceptions of cultural difference to nineteenth- and twentieth-century racial conceptions based on blood. Thus for Montesquieu in The Spirit of the Laws, the source of difference is due more to environmental factors and is not particularly racial, or at least not the sort of Manichaean racialism of a later Victorian sensibility. Thus, the heat and humidity of India, we are told, is the principal cause of the timidity and torpor of the inhabitants, both native and European: “Indians are by nature without courage; even the children of Europeans born in the Indies lose the courage of the European climate.”75 Moreover, the pressure of Chatterjee’s rule of difference is exerted in

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dissonant forms. Thus in contrast to Chatterjee’s example of the Ilbert Bill, one can turn to an earlier piece of legislation that also involved the question of racial distinctions and state structures. Act XI of 1836, labeled the Black Act, rescinded the earlier right of British subjects to appeal to Crown courts, obliging them to appeal to the highest civil court of the East India Company, the Sadr Diwani Adalat.76 British subjects in Calcutta introduced a memorial (petition) to the government, claiming that their rights as British subjects were being eroded. The East India Company, however, persevered, and after 1836 all civil litigation could only end in its adalats. In order to locate the discursive pressure within the idea of legality, we must ask why the Company held its position so tenaciously. The law member at the time, Lord Macaulay, offered a predictable rhetoric of equal justice, of a single procedure that promised justice to all its subjects. Considering the demand for separate appeals, Macaulay argued that “the distinction seems to indicate a notion that the natives of India may well put up with something less than justice or that Englishmen in India have a title to something more than justice.”77 Later in a more revealing Minute (memo), Macaulay was to insist that the real issue was the consolidation of the state itself. While the petitioners, Macaulay argued, would like to convert the issue into one of rival traders, the actual concern was one of state power. In his Minute of 3 October 1836, Macaulay insisted that the Company must intervene. Moreover, this intervention was “not the jealousy of a merchant afraid of being undersold, but the jealousy of a ruler.”78 To be fair, however, I think that these reminders, important as they are, that race cannot be thought of as a conceptual constant, or that the colonizers cannot be considered a homogenous and undivided entity, do more to qualify than to contradict Chatterjee’s argument. After all, what is key to his argument is that in the end race would consistently function within the colonial state as a limit to its modern completion. Thus he insists upon “the inherent impossibility of completing the project of the modern state without superseding the conditions of colonial rule.”79 The dialectical language of “superseding” would seem to place Chatterjee’s analysis if not firmly in a Marxist historiography then at least, as Stuart Hall used to say of his work, “within a shouting distance of Marxism.” Moreover, Chatterjee’s understanding of what marks the colonial is quite close to that of his colleague in the Subaltern Studies

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movement, Ranajit Guha. In a similar move, Guha identifies the essence of what makes a colonial state with a structural inability to complete the project of modern power. Thus in Dominance without Hegemony, he notes that “colonialism could continue as a relation of power in the subcontinent only on the condition that the colonizing bourgeoisie should fail to live up to its own universalist project.”80 Guha’s argument is principally addressed to members of the so-called Cambridge School of Indian History, who place the emergence of the colonial state in an intimate relation with indigenous forces, thereby hoping to revise the understanding of colonialism as rupture. Nonetheless Guha’s position does succinctly capture a definitional understanding of colonialism as a condition where the modern project reaches its strained limit. For both Chatterjee and Guha remind us that in terms of an emergent modernity, the colonial condition, to the extent that it may remain colonial, must work as a limit. How then are we to utilize both Fitzpatrick and Chatterjee in articulating a specific place of the colonial in relation to the modern? While with the former we have a reading of the colonial as a source of differentiation crucial to the initiation of the modern project of law, with the latter we encounter an insistence that the colonial must be read as the limit case of that project. What is key, however, is that these discourses consistently tie together forms of difference with forms of rule. For this reason, they are not just foundational to conceptions of modern law (Fitzpatrick), or limits to the normalization of modern power (Chatterjee), but are crucially both cause and limit. It is in this sense that colonialism as a specific historical formation facilitates our theoretical critique of both the creation of the rule and the exception. That is to say, colonialism is the best historical example for any theoretical study of norm and exception, rule of law and emergency. Let me suggest that a colonial rule of law is articulated within the tension and polarity of two key Enlightenment concepts: primitivism and Oriental Despotism. These concepts from Locke to Montesquieu onward couple cultural and racial difference with forms of state and government. Where primitivism is criticized for an absence of state rule, despotism is marked by nothing but rule, nothing but the allchoking “will of the one.” (The fact that these concepts do not correspond to an observed situation on the ground should by now go without saying.) Within primitivism and despotism, the construct of a

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colonial lawful rule emerges as a median category. It is a form of sovereignty and governmentality: a rule that is lawful, as it lays claim to legitimacy through law, but also one that is literally full of law, full of rules that hierarchicalize, bureaucratize, mediate, and channel power. This insight into the genealogy of colonial legality means that the force of its critique cannot be either simply affirmative or oppositional—cannot celebrate the extension of a rule of law, or decry that the Enlightenment values of rules and rights were an unkept promise in the colonies. Rather the critique must focus on the constitutive role of the colonial in the articulation of the modern. Colonialism makes explicit the connection between racial and cultural conditions and forms of rule in general—and in doing so, as we shall see, also makes explicit the relation between a rule of law and emergency, a relation that is as intimate as it is anxious. The main body of this text is divided into three chapters, which are arranged chronologically and theoretically, albeit in sometimes overlapping and discontinuous ways. Chapter 2, “The Colonial Concept of Law,” which examines the way the sources and limits of legal authority were conceptualized, that is to say examines the rule of law itself, covers the period from the eighteenth to the nineteenth century. Chapter 3, “The ‘Writ of Liberty’ in a Regime of Conquest: Habeas Corpus and the Colonial Judiciary,” focuses largely on the nineteenth century and the way in which general notions of emergency, quite apart from specific occasions that call for extraordinary powers, are imbricated into the legal reasoning and legal institutions of the colonial state. Chapter 4, “Martial Law and Massacre: Violence and the Limit,” looks at emergency powers particularly as they are deployed in the nineteenth century in Jamaica, and in the twentieth-century incident of the Amritsar massacre. Thus while chapters 2 and 4 are explicitly about the conception of a rule of law and emergency respectively, chapter 3 acts as a hinge of sorts. Tracing habeas corpus from its introduction to its ultimate suspension in colonial India allows me to substantiate the arguments for a rule of law—habeas after all was and is one of the more elementary markers of a liberal legality—and to anticipate the workings of emergency. Chapter 3 is also the one that concentrates on the more daily and institutional operations of law in the courts. Indeed, it could be said of all three of the chapters that they employ different his-

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torical sources in order to examine the operations of law in different registers: while chapter 2 is primarily concerned with the writings of philosophers, jurists, and colonial administrators, and chapter 3 is more case based, chapter 4 concentrates on the operations of the army and executive. Each of these chapters bears out the assertion that this is neither a work of colonial history nor of legal theory but in a deeply symbiotic and continuous way of both. This is not a narrative history or a monograph on, for example, the legal question of rights. Each chapter hopes to create a dialogue by turning to historical archives and to some particular aspect of contemporary theory. In chapter 2, the historical ideology of the despotism of Eastern societies and the codification efforts of the modern colonial state are placed within the theoretical issue of law’s relation to society, of law variously understood as sociological or positivist. In chapter 3, current arguments in legal theory that view rights not as ahistorical entities but rather as contingent modes in the modern operation of power are used to elucidate the reading of rights in a colonial regime, particularly the disjunctive doctrinal history of habeas corpus in colonial India. Finally, analyses of law’s relation to violence from Robert Cover to Walter Benjamin are vital to answer the question, What is martial law? While the substance of these exchanges will hopefully emerge in the course of each chapter, the point to emphasize here is that throughout there is a process of selection that applies to the choice of both the historical and theoretical materials that are put into dialogue with each other. Throughout the book there are guiding chronological narratives, both more general, such as the story of the British arrival and expansion in India, and more specific, such as the legal history of habeas corpus and of the concept of martial law. The analysis, however, proceeds by closing in on a few instances and texts that are, in my judgment, the best examples of the larger argument. Such a symptomatic reading allows me to cover a wide terrain while still keeping the argument and, indeed, the overall book, focused and concise.

Chapter 2

The Colonial Concept of Law There is but one thing which the people in this country look upon as repugnant to happiness, which is arbitrary power, despotism; and they think that to abolish despotism it is sufficient to establish rules. —Jeremy Bentham

Readers familiar with the texts of modern jurisprudence will no doubt have recognized in the title of this chapter a reference to one of the more famous books of that corpus, H. L. A. Hart’s The Concept of Law.1 First published in 1961, Hart’s work has been rightly credited with reinvigorating jurisprudence in general and its positivist branch in particular. Written largely in response to the ideas of John Austin, and his definition of law as a command of the sovereign, The Concept of Law proposes nothing short of a “fresh start” for jurisprudence. It accomplishes this task by focusing on the variety and combination of rules that structure a modern legal system. My interest in the uneven formation of a colonial rule of law compels me to articulate a sub-version of Hart’s famous title—to ask, in short, What are the sometimes coincident and sometimes incommensurable conditions of colonial rule that both illustrate and exceed the concept of modern law? As with most titles that echo other works, there is both a tribute and a critique involved here. Although we shall have occasion to return to The Concept of Law elsewhere, here I open with Hart’s work because it readily conveys some of the more enduring and controversial elements that inhere in jurisprudential writings on the definitions of modern law. I am, however, not the first to pit the colonial archive against Hart’s text. Sally Moore, to name one scholar, has made a similar maneuver in relation to the function of courts in Tanganyika.2 This raises at least tan35

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gentially a question: What is it about Hart’s text that invites such readings? For Moore, it is the clarity of Hart’s positivist demand that first of all the law be known, written down, and readily accessible, and his insistence that such “rule standardization” be linked “to some kind of authoritative hierarchy.”3 Such a system is, of course, reflective of a centralized bureaucratic state, and one that is posed to the Africans as something that is needed and what for them has yet to be. By using Hart, then, Moore seems able to draw our attention to the doubleness of modern law in colonial history (although this is not her vocabulary)— to its existence “both in ‘real time,’ that is at a particular dated historical moment, and in some grand, undatable total trajectory of social evolution.”4 The latter, I would add, points to a question of history internal to Hart’s text, and one that organizes the elements that comprise for him the definition of law. These elements can be cast in the form of a duality. In The Concept of Law we have both the notion that the essence of law cannot be grasped absent an understanding of its social aspect and the notion that law itself cannot exist without an establishment of officials and institutions. Overall such an argument is not inherently unreconcilable but it does match a common divide in jurisprudence itself, whereby law is understood as either an autonomous domain, the business of legislation and courts, or as a sociological reflection of the habits and customs of a people. Such a division equally corresponds to an intellectual inheritance to which Hart’s work can be considered a response. As Neil MacCormick notes, by the time Hart engages with these questions, “two great movements in nineteenth century thought had gone stale. On the one hand there was a tradition of analytical jurisprudence, Benthamite in intellectual inspiration, but based immediately on John Austin’s Province of Jurisprudence Determined and Lectures on Jurisprudence. On the other hand there was the school of historical jurisprudence, stemming from Sir Henry Maine’s Ancient Law.”5 The Concept of Law then can be understood as exemplary of the larger trajectories of jurisprudential thought. But just as important, these alternative approaches to the definition of law prefigure some of the more contentious debates in a colonial legal discourse. Thus arguments over the feasibility of applying English law and legal principles to India, or the continuation of the putative forms of precolonial sovereignty, or even the limits of a normative discourse of social improvement, all take place within a larger

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debate over whether law is best understood as a science of legislation or as an organic social form. Opening with a view of these legal debates in general and an engagement with Hart’s text in particular allows us to delineate the theoretical stakes prior to encountering the historical archive. It allows us to locate the modern, positivist effort to wrest the definition of law away from a personalistic model of sovereignty within a very material history of colonial expansion, and new challenges to modes of governance and legitimation. If there is a primal scene in modern positivist jurisprudence, it is undoubtedly the recognition by John Austin of law as essentially a command for compliance backed by a threat of harm. It is, of course, such a scene and the argument against identifying law with such an essential moment that prompts the writing of The Concept of Law. If the essence of law may be reduced to a command, Hart argues, then law as a complex structure of legitimate authority would be forced to identify with its horrifying double—the example of a simple bank robbery, as in “the case of the gunman who says to the bank clerk, ‘Hand over the money or I will shoot.’” There is, of course, more to Austin than meets Hart’s eye, and Hart himself acknowledges his reading as somewhat truncated. But it is not the specificity of Austin’s argument that bothers Hart, but the long shadow thrown on jurisprudence by a theory constructed out of “orders, obedience, habits and threats”; a theory that for Hart does not and cannot include “the idea of a rule, without which we cannot hope to elucidate even the most elementary forms of law.”6 This is the reason for “the fresh start” which The Concept of Law proposes: a theory that focuses on the variety and combination of rules that structure a legal system. Hart’s first attack against the theory of law as a sovereign command is to point out the social sources of law. If one were to forget the prominence of an Austinian jurisprudence to which Hart is replying, the suggestion might seem uncontroversial. Hart’s theory of the social aspect of rules, however, does more than pose an alternative to Austin, as it draws our attention precisely not to habits but to rules. For Hart, the crucial source of law is that there is a mental attitude toward rules, an internal aspect that differentiates them from mere habits and provides them with their normative force and sanction.7 Such a sanction does not necessarily have to be punishment, it could just as well be social stigma

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of some sort, as is the case with “primitive” societies, which for Hart are the best example of the fact that in all societies with something called “law” such a social aspect must be present. Indeed, all societies, even the most rudimentary, will have such primary rules of obligation, but in order to explain the functioning of a modern state, Hart suggests, something more is required. Hart’s theory is cast in the form of a historical Bildung: a primitive society may have law to the extent that it contains primary rules of obligation, but it cannot be considered a mature legal system until it has a secondary set of rules—rules directed not to the general populace but to officials who determine, declare, and enforce the law. Indeed, as Hart continues to tell us his story, the mode of obedience (whether subjects obey the law out of a sense of fear or social conformity or moral bearing) becomes less important than the development of an official legal establishment: “The history of law does, however, suggest that the lack of official agencies to determine authoritatively the fact of violation of rules is a much more serious defect.”8 In fact, by the end of Hart’s story, the definition of law has more vested in how officials determine with certainty the validity of a rule and its potential violation, including the function of the ultimate rule, the capstone of Hart’s argument, the rule of recognition. Hart’s developmental narrative, interestingly enough, matches the tale of progress so fundamental to colonial discourse and so ubiquitous in its archive. In India this story is told as one of overcoming the sovereign excess of despotism in favor of a rule-bound, bureaucratic form of government. This is, of course, a well-known and ideologically overdetermined narrative, but some of its details are noteworthy. For law and government this progress is accomplished, as Fitzjames Stephen proudly declares, by replacing the capricious and purely extractive force of the sovereign and his form of criminal justice, which was “little more than organized and authorized massacre and extortion, with a process of professionalization and legal codification,” whereby “all the important branches of law in daily use are thrown into a distinct, systematic, written form.”9 Such a change in law and government is not just confined to a new form, for they are part of a new field of operation. This is the happy conclusion of the colonialist history by Edward Thompson and G. T. Garett, Rise and Fulfillment of British Rule in India.10 The completion of their title refers to a “material side” of rule that facil-

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itates a productive life: irrigation systems and railroads, land surveys and censuses, a police force that “compares favorably with any,” all now “managed by a trained bureaucracy.”11 It is, of course, no great stretch for us to see the list of this “productive life” as uncannily similar to Foucault’s understanding of governmentality. Law is thus part of this new normative arrangement. But how is this process achieved? It should be clear by now that in beginning with Hart’s model of law, I am not questioning the fact that this version is the dominant one in modern law, but merely making explicit its ideological and historical contingencies. Moreover, by highlighting the place of the colony and the function of contrast provided by the imagined forms of native sovereignty, I hope to specify the role of colonialism in the production of such a definition of modern law. This chapter then tracks a passage of sorts in colonial India, which we may provisionally denote as one from sovereignty to governmentality, and does so by focusing on two archival sites—the descriptions of Oriental despotism followed by the arguments around legal codification. Indeed, such a passage is itself symptomatic of a distinct theoretical understanding of power and modernity. In order to more fully understand the lineaments of such a passage, we will briefly pause over the particular understanding of modern power. Here the work of David Scott in his book Refashioning Futures: Criticism after Postcoloniality is useful.12 Taking his lead from Foucault, for Scott, what is distinctive about modern power is not just the change in who wields it (a legislature as opposed to a king) but that “it is inscribed within a new field of functionality (the social) in relation to a new target (the government of conduct).”13 Power thus is no longer about the direct extraction of value associated with an older sovereignty, but finds its legitimacy in the goal of social improvement and the changes necessary to bring that about. Scott insists as much for the colony, as Foucault did for Europe itself, that the “inscription of the modern into colonial space” is best understood as a “governmental reorganization of the existing institutional and political space such that by a certain number of transforming arrangements and calculations the conduct of the colonized is constrained or urged in an improving direction.”14 Of course, Scott’s account on some level simply emphasizes the principal shift toward the “disciplinary society” everywhere in the modern world. To that extent, Scott points us toward those conditions of mod-

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ern rule in the colonial state that critics from Weber to Foucault have identified in the recent history of the West. At a certain level, I have no quarrel with this argument—I certainly do not think that colonial societies are disjunctively different from modern societies in general—but I do think that given the emphasis on race they are distinctive. Such a racial distinction operates, as I understand it, in two ways: it forces the arguments for and against the re-formation of law to be explicit, and it functions as a limit case to the arguments, shaping them in surprising ways. Thus, in the debate over the appropriate forms of rule for colonial India, we find at least one set of arguments that insist the introduction of modern legality will not consolidate but weaken the efficiency and legitimacy of rule. Thus I insist here upon the denotation of sovereignty and governmentality, the beginning and end of the historical passage I wish to trace, as provisional only because of a certain excess of signification that attaches to these terms, both in a colonial imaginary and in contemporary theoretical discourse. The project of law in colonial India resists being placed under any received template of race, power, and difference. On one level, what could be more obvious a presumption than that colonial administrators would claim the superiority of English law and the civilizing mandate of its transfer to India? As anyone familiar with the claims of the Utilitarians knows, however, this is anything but the case. For the Utilitarians influenced by Bentham, particularly James Mill and later Thomas Macaulay, the objection was often a combination of arguments: the recognition of conditions peculiar to the colonial environment, and the unsuitability to India of English law with all its technicality and intricacy. As Eric Stokes has pointed out in his comprehensive work The English Utilitarians and India, although the Utilitarians argued for the “substitution of the rule of law for that of personal discretion,” they did not believe that elaborate checks and balances were suitable for the colonial regime.15 Moreover, the then current state of English law itself left much to be desired. Bentham himself frequently “condemned the Whig addiction to complexity”; and following him, James Mill insisted that what in England were merely intricacies of law were in India an “unmitigated evil.”16 Not only did Bentham and Mill believe that the haphazard amalgam of English law, its feudal remains and its historical accretions, that is to say, its distinctly unmodern character, provided neither source nor example for the colonies, but the success of the

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Anglo-Indian codes would themselves offer a shaming example for English law. Fitzjames Stephen, without any hint of exaggeration, would claim that “to compare the Indian Penal Code with English criminal law is like comparing cosmos with chaos.”17 On the other hand, legal codification was itself a controversial and ambitious undertaking. Even a schematic sketch of the process of legal codification in British India will reveal the ambitious scope of the project. Beginning with the sanction given by the Charter Act of 1833, moving through the numerous drafts and reports of four separate law commissions, and ending in the 1880s, the process of codification covered aspects of substantive and procedural criminal and civil law, ranging from Acts of Penality and Evidence to Contract, Trusts, Transfer of Property, and Easement (see appendix B). To provide a textual outline for the regulation of existing society was an exciting notion for the more ambitious of the Company’s employees. As a massive interpretive project, codification also provided an answer to the inevitable anxiety felt when the colonial gaze traversed India: a sense of confusion and overwhelming chaos. The qualities that government officers demanded of codification—consistency, predictability, and certainty—answered these needs and anxieties. Indeed, each code was understood to be doubly comprehensive, encapsulating and explaining a whole aspect of social relations. In this sense, legal codification matched the Orientalist will to power/knowledge of its philological and ethnographic counterparts. There is, however, a crucial difference that makes codification not just another example of Orientalism: its critics charged it with not extending but unnecessarily limiting state power. Fitzjames Stephen in criticizing this position noted: It is a favourite doctrine with persons who hold this opinion, that the government of India possesses the absolute power of the old native states, subject only to such limitations as it has chosen to impose upon itself by express law. That every new law is thus a new limitation on the general powers of the government, and tends to diminish them, and that there ought to be as few laws as possible.18 The “absolute power of the old native states,” although itself a fiction produced through the “imaginary” histories of the late eighteenth century and associated with the objectionable “excesses” of the “Orient,”

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was an attractive figure to the consolidating Company state. Whether it was the British Parliament defining rights and responsibilities in statute, or the law commissioners attempting to codify criminal procedure, all British politicians, administrators, and jurists struggled with the effort to balance flexibility and a discretionary authority, putatively required by colonialism, with the stability and predictability associated with a rule of law regime. To question what were to be the proper sources of the law—a question that administrators and jurists, politicians and judges, asked constantly in India—was to almost instantly take a position on what were the more important conditions specific to the colonial environment that the laws needed to take into account. Thus, for example, those who argued against the project of legal codification constructed their argument by highlighting the discretionary authority, supposedly endemic to Oriental despotism, that they felt codification would eclipse but that they argued no government in India could afford to dispense with. This intricate mix of social and political pressures, on the one hand, and normative sources of the law, on the other, makes it very difficult to differentiate pronouncements of what the law was in colonial India from a larger discourse on Indian state and society. For reasons of clarity, therefore, let me first schematically list the main sources of law in colonial India. There were, of course, the statutory acts passed by the British Parliament that worked as constitutional outlines for the colony. These acts stipulated the duties and responsibilities of the branches of government, such as the legislative powers of the governor-general and council, the jurisdictional competence of the courts, and so on. The acts did not transfer English law to India. Rather they stipulated the local power of making laws required in India, but with some important qualifications: the lawmaking power of the colonial government was limited by the so-called nonrepugnance and allegiance clauses. The first of these clauses ensured that no local law would be contrary to the basic principles of English law. The Regulating Act of 1773 contained precisely such a qualification, as it gave the governor-general power to enact rules, ordinances, and regulations provided they were not “repugnant to the laws of the realm” (13 Geo. III, c. 63, s. 36). Indeed, every major piece of authorizing legislation contained such a qualification. What would amount to repugnance, however, was a more vexing question, and one left largely unanswered through the first half of the

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nineteenth century. After the revolt of 1857, when sovereignty passed from the East India Company to the Crown, this limitation was continued in the form of the “allegiance” clause. Thus, the Indian Councils Act of 1861 set up a governor-general and council of five appointed by the secretary of state for India. Section 22 of the act, which was to be the focus of later constitutional challenges, enlarged both the governorgeneral’s and council’s legislative power and the qualifications upon it. It gave the governor-general the power to legislate, as long as local laws did not affect, “any part of the unwritten laws or constitution of the United Kingdom of Great Britain.”19 A similar clause was to be placed in all of the subsequent Government of India Acts and was to be the focus of periodic constitutional challenges to emergency laws. The British Indian courts’ interpretation of such constitutional limitations will be the focus of the next chapter, but here we may remind ourselves that other important sources of law in colonial India were the legal decisions of the various Indian courts, as well as the important constitutional decisions rendered in appeal by the Judicial Committee of the Privy Council. Particularly through the early decades of the nineteenth century, the local courts were often asked to rule on disputes governed by no clearly recognized positive law. In such cases, the operative rule was “that in the absence of any positive law to the contrary . . . the decision of the court is to be according to justice, equity and good faith.”20 Such an open-ended formula was obviously of little help in each particular case. Usually it just meant that the judge would apply an English common law rule he was familiar with. For Frederick Pollock, writing much later in The Expansion of the Common Law, this was a laudable development, as it grafted the essential principles of a rule of law onto the colonial regime.21 In India, however, with its elaborate administrative sections and intricate legal divisions, such flexibility could result in a dizzying patchwork of rules and regulations. Such a lack of consistency was, in fact, to be one of the objections raised by the proponents of legal codification. This struggle to substantiate a legal system that could simultaneously embody both discretion and fixity was intensified by the constant reference to the precolonial form of rule known as Oriental despotism, against which the British sought to define the distinctiveness and legitimacy of their own rule. It is, thus, with the effort to understand this elaborate imaginative construct that we shall begin.

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The Phantasm of Oriental Despotism An explication of the eighteenth-century understanding of despotism and its lasting influence on the concept of modern law properly begins with the writings of Montesquieu. On a certain level this should provoke little surprise, as the place and prominence of Montesquieu in a history of legal and political ideas need neither introduction nor vindication. His work has long been considered an “indispensable” source for the framers of the American Constitution; Fitzjames Stephen’s contemporary Oliver Wendell Holmes declared him to be “a precursor in so many ways”;22 and Durkheim was to nominate him as the very first of political scientists, a title that has never seriously been disputed.23 More surprising, perhaps, is the relative lack of attention Montesquieu has received from critics of colonial discourse, even those particularly interested in the colonial imagery of Enlightenment texts. After all, in The Spirit of the Laws, we have a text widely considered foundational to Western legal ideas that proceeds by explicitly dividing the world into types of governments and completes its more major arguments by reference to the figure of Eastern despotism. Here then are the ready ingredients for an Orientalist critique of Enlightenment jurisprudence. Perhaps the cause of the neglect can be traced to the descriptive excess with which Montesquieu appears to treat despotism. Montesquieu’s effort, of course, is to draw the despotism of Asia, with its all-consuming fear and privation, its capricious princely whims that amount to the ruin of the state, as a warning to the absolutist ambitions of European kings. And if this means that at least on the surface the most horrible of calamities have to be listed, then Montesquieu will not shy away from that task. In fact, despotism was not a new category in the intellectual vocabulary of Europe, nor was Montesquieu’s use of the term received without serious and immediate objections. And to the extent that Montesquieu’s exaggerations of the horror of despotism have more to do with critiquing the French absolutist monarchy, the principle of government as “the will of the one,” that too was not new to colonial discourse. In fact, in English law we have the inaugural definition of colonial conquest, in Lord Coke’s opinion on Calvin’s Case (1608),24 tied up with the specific historical effort to resist the absolutist powers of the Stuarts. These other moments are worth looking at, if only to specify what is new about Montesquieu’s effort.

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In Calvin’s Case or The Case of Postnati the precise issue before the court was whether Robert Calvin, a Scot born after the accession of James VI of Scotland as James I of England (hence Postnati), was able to inherit English land. Aliens were not permitted to inherit and hold land in England, but Coke’s affirmation of Calvin’s ability to do so rested on the conclusion that a Scot born after the union of the two crowns was equally a Scottish and English subject, as the relationship between subject and king was personal and immutable. “Whosoever at his birth,” Coke argued, “cannot be an alien to the King of England, cannot be an alien to any of his subjects of England.”25 Such a conclusion relied then on a theory of personal allegiance between sovereign and subject. But what of the different laws within the kingdoms under the sovereign? Within the reasoning of his opinion, Coke introduced the distinction between kingdoms acquired by descent and kingdoms acquired through conquest, which led to a legal doctrine on conquest with durable consequences. Kingdoms acquired by descent, such as Scotland in the present case, constituted the king’s realm. Within the realm, Coke argued, the king was, like his subjects, bound by the laws of the realm. In his dominions acquired by conquest, however, the king had an absolute power over the life and death of his subjects. Here the monarch could give to the conquered territory whatever law he chose. For if a King come to a Christian kingdom by conquest, seeing that he hath vitae et necis potestatem, he may at his pleasure alter and change the laws of that kingdom . . . But if a King hath a kingdom by title of descent, there seeing by the laws of that kingdom he doth inherit the kingdom, he cannot change those laws of himself, without consent of Parliament.26 If the dominion acquired by the king was a Christian kingdom, indigenous laws could continue until they were altered. In the case of an infidel kingdom, however, all the local laws were abrogated eo instante. The first part of the opinion in Calvin’s Case, then, offers nothing particularly new: the absolute power of a conqueror is recognized, including his right to title and his law-giving function. The innovation in Coke’s argument, however, lies in the effort to locate a check upon such an absolute power. Thus, Coke goes on to qualify this law-giving right of the monarch: once English law had been introduced into the domin-

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ion, it could then only be altered through Parliament. What Coke neglected to mention was which parliament was to exercise such power, and this was later to become a source of considerable debate. Coke’s example was Ireland, and scholars have argued that he meant the Irish Parliament, although in the major opinion affirming Coke’s doctrine, that of Lord Mansfield in Campbell v. Hall, it was argued that Coke must have meant England.27 In any case, this doctrine of a prerogative right in dominions of conquest was to show up in the case of various colonies. For our purposes, Calvin’s Case must be read as an ideologically inaugural moment, as it henceforth makes available to the colonies both sovereignty and the rule of law, both prerogative and constitutional restraint. By the time of Lord Mansfield’s decision in Campbell v. Hall in 1774, political revolutions might have changed the ratio of prerogative and restraint but they had not removed Coke’s essential formula. By the time Montesquieu writes against the French monarchy, then, the notion of resorting to despotism as a warning was as established as was the use of the term in the political literature of seventeenth- and eighteenth-century Europe. The term had first appeared in a startling statement in Aristotle’s Politics, where it was already extrojected onto the Orient: “Barbarians are more servile by nature than Greeks, and Asians are more servile than Europeans; hence they endure despotic rule without protest.”28 Revived in a more complicated way by Hobbes, it appears in France in the works of La Bruyère and takes on a particular frisson in the increasing polemics against Louis XIV.29 Soon after the publication of The Spirit of the Laws, Voltaire was to object strenuously to Montesquieu’s use of the term.30 And by 1778, Anquetil-Duperron in his Legislation Orientale was offering specific social references from the “real” East in opposition to Montesquieu’s myth-making.31 These objections continue well past the historical shelf life of colonialism itself, repeated anew and as if new. Thus, Althusser recounts an episode where in 1948 at an international conference on law, the Turkish delegation with much nationalist indignation protested the use of the term in reference to their political system.32 More in a spirit of postcolonial critique, however, we shall have to consider the productive force that the category exerts in this foundational legal text and not just hope to dismantle its force by dismissing its presence. As Althusser pointedly notes, “once the geographical myth of

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despotism has been denounced, there remains an idea of despotism that no Turkish protestation can refute.”33 Although other authors had used despotism as a category, it is with Montesquieu that we get a systematic differentiation drawn out in exhaustive detail. “There are three kinds of government: Republican, Monarchical and Despotic,” Montesquieu confidently declares at the opening of book 2 of The Spirit of the Laws, and then proceeds for the next twenty-five books to associate each system with a specific climate, commerce, religion, status of women, and so on.34 Each of these three systems, Montesquieu tells us, has its own particular principle: republican democracy operates by “virtue,” monarchical government by “honor,” and despotism by “fear.”35 In addition, each of these systems has a particular formal structure (who holds power, not how)—what Montesquieu refers to as the “nature” of each type. The first of these types, republican democracy, is more easily separated from the rest: it is the only system where the people hold sovereign power. The problem, however, arises with the other two systems, for they are formally alike, as both have power located solely in the hands of one individual. Montesquieu, therefore, needs to introduce a meaningful distinction if the absolutist monarchy he wishes to defend is not to fold into the despotism of which he is so critical. The distinction emerges from the mode of rule in each system: while in monarchical government, Montesquieu insists, “one alone governs, but by fixed and established laws,” despotism is “without law and without rule,” governed only by the despot’s “will and caprices.”36 And thus we are introduced to what will become the all-too-familiar antinomy of fixity versus discretion, established law versus sovereign will. It is here that the principle of despotism in all its social consequences performs a crucial labor for Montesquieu. This distinction is drawn out in various ways throughout The Spirit of the Laws, some of which have to do with Montesquieu’s specific purposes, such as the defense of aristocratic offices, while others come to be more generally associated with constitutional legality in the West. Although both an absolutist monarchy and despotism are dependent upon one man, the former is more stable, Montesquieu insists, because of the “several orders dependent upon the constitution.”37 These layers of power provide the essential buffers against arbitrary rule that are lacking in despotism. The other sources of difference between a monar-

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chy and despotism are, of course, familiar to scholars of law as the essential features of constitutional government: judgment that is rule based and is pronounced by an independent judiciary. What does need to be emphasized, however, is that these features are sources of difference, qualities that distinguish, according to Montesquieu, Eastern from Western modes of rule. Thus when Montesquieu argues for laws that are generally known, fixed, and precise, he finds these qualities on a continuum along the three forms of government: “the more the government approaches a republic, the more the manner of judging becomes fixed.”38 In monarchies there is law, although not always precise, but in despotism the only guiding rule is the will of the prince.39 The most familiar of these points of difference is, of course, Montesquieu’s emphasis on a separation of powers. This is, however, not necessarily the tripartite separation of a later American constitutionalism. Rather, Montesquieu insists only upon the separation of the power of judging from other forms of power. In Western monarchies, therefore, executive and legislative functions may be combined, but it is crucial that the king does not judge cases himself. Predictably, no such restraint is to be found in the East.40 The structure of each of these systems is not entirely rigid and is, according to Montesquieu, susceptible to internal and external forces of change. One of Montesquieu’s great concerns, after all, is that the loss of a few crucial safeguards will cause the French monarchy to degenerate into despotism. But could a despotic regime be improved? Could the introduction of similar safeguards remove the arbitrary nature of power in the East? It is here that we find one of the more abiding tensions in The Spirit of the Laws. On the one hand, the source of difference in Montesquieu’s explanation is due more to environmental factors and is not particularly racial, or at least not the sort of Manichaean racialism of a later Victorian sensibility. On the other hand, one can notice the continuous emphasis on nature. The inherent connection between law and place is the entire concern of book 14. The nature of the climate, Montesquieu argues, determines character and “passions of the heart,” and “laws should be relative to the differences in the passions.”41 Indeed, a combination of factors—the character and predominance of religion, particularly Islam, the climate and terrain, the “passions of the people”—lead Montesquieu to suggest that despotism may be a suitable form of government for those areas where one tends to find its pro-

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longed existence.42 Certainly, Montesquieu insists, laws should be designed to encourage desired qualities and discourage inherent vices,43 but an overall sense of the inherent suitability of despotism remains. It is precisely this ambivalence, this contradictory emphasis on the value of stable laws and balanced government but also the possible suitability of despotism, that we find in the early and influential British accounts of despotism in India. These social descriptions, of course, introduce Montesquieu’s famed sociological method, his avoidance of the originary fictions of contract theory and the eternal provisions of natural law in favor of specific and observed conditions. If, however, this were all that The Spirit of the Laws offered, it would not distinguish Montesquieu from the various chroniclers and travel writers who preceded him. What is new to this work and what places Montesquieu in an inaugural position within modern understandings of law is that he offers both the nature and principle of each type as a singular whole. Althusser’s reading of Montesquieu correctly pinpoints precisely this innovation: the principle and nature of each type must be seen together in the form of the state as an “expressive totality.”44 Montesquieu is in search of, as he himself makes amply clear, not particular laws but their general spirit, and he locates this essence in both the formal description and social context of each legal type. The relation between principle and nature of each system is far from straightforward—does the formal condition of law exist apart from the social or does it depend on it?—but with the sum of these elements we are in the realm of modern law. Thus if Hart wishes to offer a concept of law that includes a social dimension (the “internal aspect” of rule following) and a formal description (the existence of a professional class), this only places him as heir to Montesquieu’s project and predicament. In the works of British writers in the latter half of the eighteenth century, Montesquieu’s delineation of the forms of government had hardened into a counterpoint distinction between the moral value of rules, which characterized English government, and the arbitrary quality of discretionary power, supposedly true of Indian precolonial regimes. As my epigraph from Bentham attests, whatever British government was in India, it was not despotism, but rather the antidote to despotism, and in that lay its moral superiority and justification. Recent historiography has drawn attention to the prevalence of this structuring opposition

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and read it as a relatively crude ideological maneuver. Burton Stein, writing on state formation, puts the matter succinctly: For too long, considerations of state formation in India have divided on the colonial threshold of history, and the British regime in the subcontinent has been treated differently from all prior states . . . The Mughal state, as an old regime, has been seen in some modern historiography as foreign, arbitrary, violent, and bigoted, a Muslim tyranny that justified a lawful, just, tolerant British colonial state; in other words, a strong contrast to the British regime and the latter’s justification.45 All of this is correct, and while I do not intend to argue otherwise, a closer reading of the early treatises reveals a more ambivalent attitude toward precolonial regimes. The numerous “histories” of the late eighteenth century, including those of Orme, Dow, and James Mill, were through their “ethnographic” and explanatory power doubly political: they not only gave historical weight to the phantasmatic category called despotism, but were intimately involved in debates between the East India Company, Parliament, and “humanitarian” critics in England. Indeed, a mark of these histories is their prescriptive tone and frequent criticism of Company practices and officials—what Ranajit Guha has noted as the “curious mixture of the erudite and polemical” in early British Orientalism.46 Examples of such a mode of knowledge are numerous. Explicitly “humanitarian” accounts of European exploitation, such as the Abbé Raynal’s Histoire Philosophique et Politique des Etablissements et du Commerce des Européens dans les deux Indes, seem to have been popular with parliamentarians critical of the Company.47 Imbricated in political considerations from the very beginning, these works elaborated the essential characteristics of India’s “natural” form of rule and supplied the themes for the subsequent discussions of British legality. It is in order to explicate some of these themes that we turn to two influential essays: Robert Orme’s “General Idea of the Government and People of Indostan” (1753) and Alexander Dow’s “A Dissertation concerning the Origin and Nature of Despotism in Hindostan” (1772).48 After initially joining the African Company in 1742, Robert Orme arrived in Calcutta, where his brother, William, was already estab-

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lished as a writer with the East India Company. The “General Idea” was begun in 1752 as a response to proposed regulations concerning the town police of Calcutta. Enlarged to a treatise on the nature of indigenous authority, the “General Idea” established the enduring criticisms to the native form of despotism: that it is a system of pure and singular discretion and a polity of fear. “All the luxury of an Asiatic Empire,” Orme insists, “has not been able to counteract by its propensity to magnificence and splendor, the dissipating effects of that fear which reigns throughout, and without which a despotic power would reign no more.”49 Moreover, this is a fear of the despot himself and not of his laws. Indeed, for Orme, while India was not an entirely unregulated society, as religion and custom prescribed behavior “with a constancy not exceeded in legislatures,” legality in general could not exist. Book 3 of the “General Idea,” “Of the Laws and Justice in Indostan,” opens with Orme’s firm declaration: “A government depending upon no other principle than the will of one, cannot be supposed to admit any absolute laws into its constitution; for these would interfere with that will.”50 If Orme’s presumptions about the form of despotism seem as absolute as the power he hopes to describe, it should be noted that there remains in the text a persistent tension between the theoretical notion of unlimited power and the constraints on that power revealed in its everyday workings. This tension surfaces, for example, when Orme discusses the structure of civil law in Mughal India. While “it is a maxim, that civil institutions will always be found infinitely more circumscribed, and much less complicated, in despotick states, than in those of liberty,” India, for Orme, reveals a remarkably high incidence of civil disputes, most of which arise out of the rights of inheritance and commerce.51 These disputes are settled with an approximate equity even though the despot has the right to intervene and appropriate any inheritance he chooses. Having attributed such sovereignty to the king, however, Orme goes on to argue that a political infeasibility and the influence of religion prevent the despot from ever exercising this power. So blatant becomes the difference between theory and practice that Orme insists that the sovereign’s right of inheritance is not a “chimerical notion,” that the examples of the Ottoman Empire and Turkey, if not of India, give him reason “to have insisted upon these conjectures.”52 The interference of custom into the practice of despo-

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tism has the effect of removing some of its excesses, allowing India to continue as a “powerful nation.” This, however, means that the objection to despotism cannot always be one of efficiency, of its obstruction of a civil and commercial prosperity that a rule of law would promise. Thus, at the end of the essay, Orme once again converts the objection into moral and this time religious terms. Christianity and legal liberty are conflated into the antinomy of Oriental despotism: Christianity vindicates all its glories, all its honor, and all its reverence, when we behold the most horrid impieties avowed against nations on whom its influence does not shine . . . the sons of liberty may here behold the mighty ills to which the slaves of a despotick power must be subject: the spirit darkened and depressed by ignorance and fear; the body tortured and tormented by punishments inflicted without justice and without measure.53 Fear and discretion, the principal qualities associated by Orme with despotism, now affect the individual, tormenting body and soul. The text, however, ends with the tension intact: the qualities of despotism may be suited to the success of a certain polity. If Orme’s text reveals a suspicion of the efficacy of despotism in India, Alexander Dow’s Dissertation consolidates it as anthropological fact. Similar to Montesquieu’s argument, Dow’s text is informed by an eighteenth-century climatic theory, whereby tropical environments generate particular social forms. The Dissertation opens with just such a notion: Government derives its form from accident, its spirit and genius from the inherent manners of the people. The languour occasioned by the hot climate of India, inclines the native to indolence and ease; and he thinks the evils of despotism less severe than the labour of being free.54 Throughout Dow’s essay one finds this reluctant admission, this sometimes covert, sometimes explicit understanding that despotism is peculiarly suited to India. The indolence provoked by the climate prefers a less evolved, less abstract form of governance; slavery is less a social service and more a mentality, blended with human nature through cus-

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tom; and the security provided by despotism only furthers veneration, until the people would only “revolt against the introduction of freedom,” so habituated are they to utter obedience. Indeed, in explaining despotism’s favor with the people, Dow lists the qualities of legal society: “The simplicity of despotism recommends it to an indolent and ignorant race of men. Its obvious impartiality, its prompt justice, its immediate severity against crimes, dazzle the eyes of the superficial, and raise in their minds a veneration little short of idolatry for their prince.”55 This notion of the almost inherent applicability of despotism to India is furthered by Dow’s consideration of the “natural.” Not only is despotism, in Dow’s argument, natural but it is doubly so: it is an organic form of governance, simple, discernible and immediate, and its excesses are prevented by natural law. Dow utilizes the theory of natural law to explain how a certain form of justice persists even in despotism, a form that ensures the regime’s survival and even its popularity. The despotic form of government is not, however, so terrible in its nature, as men born in free countries are apt to imagine. Though no civil regulation can bind the prince, there is one great law, the ideas of mankind with regard to right and wrong, by which he is bound. When he becomes an assassin, he teaches others to use the dagger against himself; and wanton acts of injustice, often repeated, destroy by degrees that opinion which is the sole foundation of his power.56 At work here is a powerful subtext of universal morality, an inherent human understanding of “right and wrong,” that produces both a strong example and an equitable governance of society, preventing the despot from overly indulging his discretionary power. Indeed, this equitable governance exists despite a discretionary power, which still remains. Despotism, for Dow, comes close to being a “legal society,” but can never achieve that status, as the “opinion” that supports it is never to be confused with political consent, which can only exist through civil regulations. The ends of a natural law system may turn out to be just but they never can be guaranteed as such, for they do not employ legal regulations that are the only just means. Indeed, while Dow admits that crime in a despotic state is met with a swiftness and certainty of punishment, the verdict is not one of justice,

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because, as he cryptically informs us, the despot “mistakes passion for justice.”57 Only through the course of the Dissertation does the meaning of this accusation emerge: at its best, despotism substitutes equity and efficiency for the predictability of absolute rules. Dow thus sets up an objection to despotism, of a lack of predictable and public justice, which was to be extremely influential in the discourse of legality in the nineteenth century. Moreover, this objection is developed through another evocation of religion. With a seemingly more subtle rhetoric than Robert Orme before him, Dow avoids any open praise for Christianity, but locates the ideological source of despotism in Islam. “The faith of Mohammed,” Dow declares, “is peculiarly calculated for despotism; and it is one of the greatest causes which must fix forever the duration of that species of government in the East.”58 The particulars of this “peculiar calculation,” however, turn out to be anything but subtle: while on the one hand, a Qur’anic insistence on bathing produces indolence, the prohibition against wine, on the other, prevents a “free communication of sentiment,” necessary for humanity to shake off its “torpid indifference.” The ideological understanding of despotism, as it sets up a construction for subsequent legal discourse, comes through Dow’s focus on the institution of the harem. In Orientalist discourse of the late eighteenth century, the harem was already acquiring prominence as an imaginary trope, as an imaginary space, at once utterly sacred and continuously trespassed, which was to become a resilient source of imagery, both visual and textual, in the colonial imagination. As Malek Alloula has correctly noted, the harem becomes a phantasm of political and power concerns, “affecting the colonial world without being the contrivance of any single individual, this phantasm is the equivalent of a mental habit (mentalité ), a cultural habitus.”59 The harem allows Dow to elaborate nothing less than the political structure of the state, for it is at this site that Dow discovers the source of fear and obedience, essential to the functioning of despotism. The family as microcosm of the state both prepares and perpetuates the “public dread” necessary to the political system. The unlimited power which Mohammedanism gives to every man in his own family, habituates mankind to slavery. Every child is taught, from his infancy, to look upon his father as the absolute dis-

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penser of life and death. This private species of despotism is, in miniature, the counterpart of what prevails in the state; and it has the same effect, of reducing all the passions under the dominion of fear.60 The harem, in Dow’s account, performs several ideological functions for the state, as it allows men to “exercise in private” the power they are denied in public, and by making the concealment of women a priority, provides them as a particular and potent target for the despot when one of the men falls “under suspicion.” As I have already indicated, however, the focus on the harem also allows Dow to explain why, despite a sporadic equity, despotism cannot achieve the moral stature of a “legal society.” In despotism there can be no public sphere, as the state in its constitutive qualities is only an extension of the harem. If Dow has already “proven” to us that justice in despotism is not predictable, he now wants us to understand that this is because of a lack of the necessary correlate of publicity. Just as in the harem, the oppression of women goes unnoticed and without the possibility of redress, no matter how much “their friends may murmur,” so it is in the state: In the silence which attends despotism everything is dark and solemn. Justice itself is executed with privacy; and sometimes a solitary gun, fired at midnight from the palace of the despot, proclaims the work of death.61 The eighteenth-century discourse of despotism sets up a drama of natural suitability and equity, on the one hand, and a lack of publicity, predictability, and thus morality—what the legalism of the nineteenth century identified as procedure—on the other. Codification, Indian Society, and the “Spirit” of English Law It is quite remarkable how explicitly discussions over the concept of law in nineteenth-century India, even before the formal commencement of codification in 1833, reveal the themes set up by the discourse of despotism in the preceding century. If Orme was one of the first British writers to notice the efficiency of despotism, its natural applica-

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bility to the Indian environment, then Dow solidified such a notion and furthered its dissemination in a general understanding of the Indian political system. Such an understanding, of course, could only conflict with the early-nineteenth-century popularity of Utilitarianism, with its equation of efficiency, rules, and structure. Under the regulations that constituted Lord Cornwallis’s Permanent Settlement for Bengal in 1793, the collector as executive head of a district was stripped of his judicial power, and the revenue courts, mal adalats, under him were abolished (for more details see appendix B). Writing to the Court of Directors on 6 March 1793, insisting upon the removal of the mal adalats, Cornwallis revealed the familiar understanding of the rule of law as the rule of property, of the equivalence between legality, property, and prosperity: In this country, as in every other, security of property must be established by a system upheld by its inherent principles, and not by the men who are to have the occasional conduct of it. The body of people must feel satisfied of this security before industry will exert itself, or the moneyed men embark their capitals in agricultural or commercial speculation. There are certain powers and functions that can never be vested in the same officers without destroying all confidence in the protection of the laws.62 The “Principles of 1793,” however, were the subject of intense scrutiny and debate into the nineteenth century. Ultimately, however, it was more than utility that validated the elaboration of legality. The moralism that was another part of the discourse of despotism, and the principal mode of its critique, provided men like Fitzjames Stephen, in the later part of the nineteenth century, a vocabulary with which to explain the nature and purpose of legality. Indeed, what emerged through these discursive contours is what John Stuart Mill in his work Representative Government called a civilized form of despotism.63 The rest of this chapter will examine some of these contours. Throughout the particular eighteenth-century intellectual history considered here, we can locate an effort to connect different forms of law to their natural and social environments. It is precisely this effort that informs much of the effort of codification. As any student of Indian

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history knows, however, that effort was itself framed within a larger debate in the early nineteenth century between the Utilitarians and a group of colonial administrators variously known as nativists or paternalists.64 By the beginning of the nineteenth century, British rule in India was on surer footing. The three “presidencies” of Bengal, Bombay, and Madras continued to grow, and by 1820, as Chris Bayly notes, “all the major Indian states with the exception of the Sikhs had been brought to heel [and] pliant regimes had been fostered.”65 The East India Company also gradually transformed from a monopoly trading concern to an administrative structure, through the periodic renewal of its Charter, whereby in the Charter Act of 1813 it lost its monopoly and by the Charter Act of 1833 ceased to be a trading company altogether. With the earlier scandals and impeachments left behind, attention turned in London and India during this period to political and economic reform. The shape of that reform was subject to an intense if brief debate between liberals, who argued for the reformation of Indian state and society along the lines of English rules and property rights, and nativists or paternalists, who insisted that the local conditions of rule be maintained. As the names suggest, regardless of particular differences the paternalists were united in their basic ideological commitment to a personal, authoritarian mode of rule that they identified as an indigenous form. The four principal figures of this group were the governor of Bombay, Mountstuart Elphinstone, the governor of Madras, Thomas Munro, the onetime resident officer in Delhi, Charles Metcalfe, and the man who was responsible for central India, John Malcolm. They were thus separated by rank and geography and even by the details of their political programs. As Stokes points out, however, “against the Cornwallis system the four men spoke with one voice. They saw it as a system of abstract principles inapplicable to India, as an impersonal bureaucracy instead of a personal, human and tangible form of government.”66 Alexander Dow’s notion of the natural, even organic force of despotism found its theoretical heir in the paternalists’ or nativists’ insistence on an undivided, simple, and immediate source of authority and adjudication. Regulations enacted in the spirit of a rule of law, as permanent and procedural boundaries on the enactment of public power, were seen as alienating subjects from the very power to which they were

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asked to submit. This criticism of the alien nature and abstraction of legality revealed itself in debates over the separation of powers, and over the village tribunal, the panchayat court. Charles Metcalfe, as Resident of the Delhi Territories from 1811 to 1819, was one of the paternalists who developed in theory and practice what he believed to be the Mughal tradition of discretionary government. When a nominal union of executive and judicial power was considered by Lord Bentinck in 1828, Metcalfe argued for the need to go further and offer the natives a military-style government—itself proleptic of the structure of martial law in the early twentieth century—“One European officer was to be placed in charge of each district and was to exercise all the local powers of judicature, police and revenue in all its branches, having under him native officers entirely subject to his orders.”67 Even to those administrators more influenced by a Benthamite philosophy, such as Mountstuart Elphinstone, who as governor of the Bombay Presidency from 1811 through 1819 was responsible for the construction of the first panoptic prisons at Poona and Ratnagiri, the elaborate regulation of an appellate system removed a sense of the immediacy of power from the enactment of justice. The panchayat courts were, to them, the embodiment of a discernible authority, of a primary power to protect and punish. Munro, thus, had set up panchayat courts as an integral part of the Madras presidency’s judicature. Regulation V of 1816 gave jurisdiction over all suits to the village panchayat under the authority of the munsiff (local judge).68 Writing only two years later in his commissioner’s report for the Deccan, Mountstuart Elphinstone argued for retaining this institution. Indeed, Elphinstone insisted that the regulation constructing an elaborate legal structure was only infecting the local vakils (lawyers) with a peculiarly British litigious spirit. Furthermore, he argued, the legal system’s “control over the public officers lessens their power without removing the principle of despotism in the government or the habits engendered by that principle in the people, and that by weakening one part of the machine without altering the rest, it produces derangement and confusion throughout the whole.”69 A better understanding of this style of nativist argument may be gained by more closely attending to the exemplary writings of one of its more astute advocates. A sense of the natural state of despotism, of its organic presence, is perhaps most explicit in the writings of John Mal-

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colm, who first served as the East India Company’s agent in the province of Malwa from 1818 to 1821, and later, following Elphinstone, was appointed the governor of Bombay. With Malcolm we not only get a familiar description of the paternalist position, but also a sense of how such a conceptualization differs from the idea of legality. In a letter to Governor-General Hastings of 11 February 1821, Malcolm argued that while the panchayat courts with their discretionary authority reflected the spirit of despotism, they often served as a shield for the locals from the central power. As such, “they are associated with every idea they have of justice, nor can they, while in their present condition, both as to knowledge and order of society, be ever brought to appreciate more artificial and improved systems of jurisprudence.”70 A few years later, Malcolm once again argued for the continuation of the village tribunals, “this primitive and excellent institution,” on similar grounds.71 The overwhelming virtues of the legal pronouncements of the panchayats were their immediacy and simplicity, as opposed to “the more artificial and responsible administration” of the British.72 This suggestion of the artifice of legality reflects Malcolm’s acute understanding of the rule of law as an abstraction, as a system that operates not by reflecting relations as they are socially constituted but by presuming an equality that begins and ends in its rule. Certainly, for Malcolm such rule signified advancement and civilization, but precisely because of that it remained inefficacious in India. Law worked, according to Malcolm, on its own internal dynamic, ever multiplying itself and the categories it uses to encapsulate its subjects. Thus to agree to the principle of large-scale codification would be to begin an endless process of self-generating technicality. In a Minute of 10 November 1830, included in the evidence reviewed by the Parliamentary Select Committee assigned to consider the Company charter and judicial reform (1831–32), Malcolm reiterated this position. If a code was to be constructed, as one had been in 1827 for Bombay, its provisions must be kept at a basic minimum. Thus when the Sadr Adalat at Surat suggested an enlargement of the code, Malcolm refused. In the Minute, he explained why: I deemed it also unwise to encumber the code with any forms that could be dispensed with, much less with those minute distinctions and shades of crime and punishment, necessary perhaps for a soci-

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Malcolm carefully tailored his argument against large-scale codification to encompass the very qualities associated with a utilitarian understanding of law: publicity, efficiency, and simplicity. A code would have to be adapted to the local arrangements of society. “If we legislate in advance of the community,” Malcolm warned, “all will be doubt and confusion.” Local habits were thus set up as preceding the community that a rule of law envisaged. Indeed, India varied regionally, according to Malcolm, in its receptivity to such a system. In the more settled territories, a skeletal code could function, but in those parts of the state “inhabited or infested with predatory tribes, this system even must be locally modified, in order to effect the great object of all law, the maintenance of public peace, and the security of life and property.”74 Here we encounter an understanding of regulations as possibly inimical to security and order, which was to consistently reappear in the discourse of the Raj. In an interesting rhetorical twist, Malcolm went on to argue that any extension of English law into India, any “theoretical change,” would be “dangerous,” particularly as the law was being reformed in England itself.75 By the third decade of the nineteenth century, however, the nativist argument was all but lost and done. The Charter Act of 1833, as already mentioned, initiated not only the codification process but also the institutional changes that would come to mark the colonial rule of law. What is crucial to note for our purposes, however, is that the nativists lost the argument, as it were, not because of the form of sovereignty per se but because they were advocating a system whose goals were already becoming obsolete. Stokes notes this precise and critical shift in the “purpose of political dominion.” Instead of providing a flow of tribute—a conception which survived at least until the end of the eighteenth century—the British power in India came to be regarded as no more than an accessory, an instrument for ensuring the vast Indian market could be conquered for British industry. This transformation of economic purpose carried with it a new, expansive, and aggressive attitude, which the French who were its later masters, termed that of la mission civilisatrice . . .

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the physical and mental distance separating East and West was to be annihilated by the discoveries of science, by commercial intercourse, and by transplanting the genius of English laws and English education.76 We should note that Stokes is careful not to suggest that such a transformation of economic purpose caused the elaboration of new normative conduct but only that the two processes were critically correlative. Such an account will recall for us Foucault’s identification of the “threshold of modernity,” which we noted earlier as one of a shift from sovereign extraction to governmentality. Even as law is inserted into a new normative arrangement, however, it is faced with enough social and political obstacles to the “maintenance of order” to make administrators wistful for the days of paternalist authority. Moreover, the paternalists’ insistence on the applicability of despotism to the Indian social environment meant that such nostalgia could be expressed in a principled form. That is to say, through the call for and promulgation of emergency regulations. But if Malcolm and his fellow advocates were correct, a problematic question seemed to emerge: What was particularly English about the English system of law and government claimed as a blessing for India? It would seem from the writings of those opposed to the nativists’ arguments that the problem was not so much the efficacy of allowing the panchayats to continue but the ideological significance of doing so. With characteristic candor, James Fitzjames Stephen captured the essence of the problem: Why would those concerned with the moral legitimacy of colonial rule “take any interest in supporting a mere despotism, differing from those of the native rulers only in the fact that it was administered by Englishmen”?77 The mode in which English legal values and principles were to be embodied in India was not a question that even the proponents of codification could immediately answer. What codification did seem to promise, however, was a sense of definition, uniformity, and clarity. The demand for codification was premised on the intention of setting to record the rights of the governed subjects. But imbricated within this intention was the more pressing need to define the state. Indeed, a single quotation is sufficient to establish the force of this sentiment. Consider, for example, the terms in which C. E. Gray and E. Ryan, respon-

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sible for recommendations on law reform, constructed a plea for codification. Writing to the governor-general on 13 September 1830, they argued: There is no uniform, no definite opinion, either as to the true character and incidents of the sovereignty of the Crown, nor as to the rights either of political power or of property of the East India Company, nor even of the relations in which the many millions of natives stand to the political authorities by which they are entirely governed.78 The process of consolidating a legal system, particularly under the Company, was always part of the process of constructing the state. That only law could make the state, make its presence felt, is testament to its growing power in England, especially with the rise of an administrative bureaucracy. Indeed, India was regarded as a particularly good candidate for the construction of a new state and subject, as it lacked any clear administrative precedent for either. Small wonder, then, that Macaulay could declare during the parliamentary debates over the prospect of codification, “I believe that no country ever stood so much in need of a code of law as India, and I believe also that there never was a country in which the want might be so easily supplied.”79 Exactly what was to be supplied remained an uneasy question, despite Macaulay’s dismissals. Malcolm and others, as we have seen, used tropes from the discourse of Oriental despotism to develop a powerful argument about the natural state of India, about the need for organic power. The supporters of codification had to contend with this argument and the desire it reflected, of an unrestricted access to irresistible force. Macaulay’s answer to this problem was to construct law ex nihilo, based only on the authority of the government of India and not on any substantive legal tradition. This was the method employed in the first code, the 1838 draft of the Penal Code, concerned with that basic aspect of state power, the power to punish. Your lordship in council will perceive that the system of penal law which we propose is not a digest of any existing system, and that no existing system has furnished us even with a ground work . . . it appears to us that none of the systems of penal law established in British India has any claim to our attention . . . All these systems are

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foreign. All were introduced by conquerors differing in race, manners, language and religion from the great mass of the people.80 The British thus are placed in a long line of conquerors and like their predecessors must exercise their right to construct a new system of offenses and punishments. We need to qualify Macaulay’s self-presentation of himself as some sort of legal conquistador, striking out in new territory. While Macaulay’s effort was to construct a code that relied on no specific cultural content and was as universal in its provisions as possible, there were, of course, models and principles that Macaulay turned to in conceptualizing the penal code. The sources of the code’s construction ranged from existing regulations, custom, and tradition, to other attempts at codification, such as the Code Napoleon and Livingstone’s Louisiana Code.81 The latter, an ambitious effort to systemize not only crimes and punishments but also questions of evidence and even prison discipline, proceeded by combining notes and explanations alongside commands. Macaulay felt that this method detracted from the putative universality and self-evident quality of the commands, and thus in his code some notes and reasons were included but “were addressed to the legislature as reasons to adopt rather than to the public as reasons to comply.”82 Where Macaulay’s draft differed significantly from Livingstone’s was in its extensive use of illustrations. The penal code united, as Macaulay claimed, precision and simplicity, “utilizing exact definitions and copious illustrations, in an attempt to render all further interpretation unnecessary.”83 The commission, however, doubted whether this method could be extended to other parts of the law, admitting “there are not the same objections to innovation in penal legislation as to innovation affecting vested rights of property.”84 Macaulay’s method of creating an entirely new legal code on a tabula rasa–like social environment was obviously more applicable to public law, and less so to Hindu or “Mohammedan” personal law, an area in which the British had already committed themselves to govern through local religious and customary law. Throughout the history of nineteenth-century codification, this problem, of the extent to which English law was applicable to India, remained: from the Lex Loci Report submitted by the first law commission to the recommendations of the fourth and last commission, the

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tension between the law of the sovereign and local practices is evident. The Lex Loci Report of 1840 recommended that English law be declared the law of the land for India. While religion and custom offered specific prescriptions for Hindus and Muslims, the commission argued, they did not provide a common law that could be referred to in certain exigencies. Neither could these religions be made into the basis for decisions not covered by statute law, as they derived their legal authority only from the faith of their adherents, not always shared by other subjects. Moreover, the commission argued that English judges responsible for decisions not covered by express law were already required to use “justice, equity and good conscience,” which given their background could only mean the application of English principles, if judgment was not to become the exercise of discretion.85 However, the strong criticisms leveled against the report, that it would unduly interfere with local systems and make their governance more difficult, forced the council in India to accept only a small part of its recommendations. Indeed, to some extent the issue was never resolved with any certainty. As far as the introduction of substantive English law was concerned, the recommendations of the fourth and last law commission reveal how little had changed in the space of forty years: the commission urged “that the English law should be made the basis in a great measure of our future codes”; but went on to argue that such materials would have to be “recast” in order for them to be fully applicable to India.86 To some proponents of codification, the argument over the extent to which substantive English law could be introduced into India missed the whole point of law codes, which was not so much to introduce English law as it was to establish legal procedure. Thus, in his oral testimony to the Parliamentary Select Committee on 16 April 1832, W. Butterworth Bayley argued that even native customary law could be so digested as to enable a proper application of precedent. Sir William Jones, Bayley remarked, had attempted to do precisely this, but had gone wrong in the form he had chosen: “a disorderly compilation of loose, vague, stupid or unintelligible quotations and maxims, selected arbitrarily from books of law, books of devotion, and books of poetry.”87 The prescriptions of religion, Bayley continued, may well be the source of the content of the law, but only the form of legality, itself a reflection of state authority, should be the source of the workings of

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the law. This would impress upon subjects the understanding that only the state was the basis of the law. To apply the authority of religion, or any other authority than that of the government, to the establishment of law, is now unnecessary, because the great and multiplied changes that the English have made in all the interior regulations of society have already destroyed, in the minds of the natives, the association between the ideas of religion and the ideas of law.88 Legal procedure was to be the ultimate answer to the question of what it meant to bring law to India. It was to be the form of a civilized despotism, for it would both declare to subjects that their identity, their offenses, their grievances, all began and ended in the authority of the law, and would reflect the morality of publicity and process lacking in the authority of a native despotism. Procedure was not substance but spirit, and in its exactitude it covered all law, English or Indian, statutory or customary, insisting that no authority preceded law, or more specifically, the workings of law, and that these workings created and reflected their own authority. Thus, Sir Erskine Perry, chief justice of the Supreme Court of Bombay, supported the Lex Loci Report, arguing that to declare English law the law of the land meant not the introduction of its content but the establishment of its mode: “Now the simple answer to Sir J. P. Grant’s protest in behalf of ancient landmarks is one that I have already had occasion to give, namely, that by introducing a uniform system of procedure, no change whatever is proposed in the substantive law of the land.”89 Indeed, legal procedure, to the extent that it meant the certain application of public regulations, could even absorb the local exigencies of the rule of law. In a remarkable moment in their introduction to the Penal Code, Macaulay and the law commissioners offered this understanding. Considering the issue of whether the structure of penality should encompass distinctions associated with status, they wrote: It is an evil that any man should be above the law;—that it is a still greater evil that the public should be taught to regard as a high and enviable distinction the privilege of being above the law . . . [however] the peculiar state of public feeling in this country may render it

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The rule of law in a colonial regime could be maintained, thus, by absorbing the elasticity required of it into the realm most close to it, legal procedure. This would allow the moral claims of legality to coexist with the political claims of government. And yet, legal procedure still conflicted with the vision of precolonial sovereignty, which the critics of codification had argued required that no restrictions be placed on the exercise of power. It is this sense of grievance, and the conflation of morality and legality, that are exemplary in the writings of Fitzjames Stephen, one of the more important architects of adjectival legal codification, and it is with him that we shall conclude. James Fitzjames Stephen (1829–94) provides one of those striking cases in which the social and familial background seems proleptically to embody the salient preoccupations of the life. His father, James Stephen, was a member of Parliament and intimately involved with the Clapham Sect, part of the evangelical movement for the abolition of slavery. In fact, his mother, Jane Venn, was the daughter of the Rector of Clapham. Henry Maine, whom he replaced as law member to the council of India in 1869, taught him law at Cambridge. As James Colaiaco notes in James Fitzjames Stephen and the Crisis of Victorian Thought, Stephen engaged with the issues of morality and law at a time when the extension of the suffrage was revising the very structure of the nation-state in England. The crisis to which Colaiaco’s title refers was a revision in the meaning of “civilization,” with the declining power of a religiously sanctioned morality and a sociopolitical oligarchy.91 Prominent in Victorian discourses of law and politics, Fitzjames Stephen is often placed as the conservative counterpoint to John Stuart Mill, with whom he often argued. Perhaps not surprisingly, however, the colonial realm offered a point of agreement, for, like Mill, Stephen argued that the state in India depended upon laws for both its authority and its morality. A fervent admirer of Hobbes’s Leviathan, Stephen insisted that individual rights could not and did not exist prior to or outside of the state. And yet, despite his firm place within an English liberal and utilitarian tradition, Stephen remained skeptical of a purely secular law and government:

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Law proper will be founded upon simple temporal prudence, and government will have a growing tendency to become a mere affair of the police, and to be separated from all moral control over the minds of men. Morals and religion, on the other hand, will suffer greatly, though in different ways. Morals will tend to become a mere sentiment or a mere speculation; and religion will tend to be merged in superstition.92 Thus, when on the recommendation of Henry Maine he was appointed law member in July 1869, he left for a country where only the state, he would argue, could accomplish the moral goals of evangelicalism. Although in the writings of Fitzjames Stephen we encounter a by now familiar discussion of despotism and legality, his particular rhetorical intervention in these discourses takes the form of a chiasmatic move, whereby antonymical qualities replace each other. Thus, where others before him had stressed the simplicity of despotism and the abstraction of law, Stephen insisted that the defining qualities of despotism were intricacy and inefficiency, and that only the law could provide a mode of unitary power by which social relations could be defined with simplicity. In a letter written in response to W. W. Hunter’s request for a historical sketch of legislation under Lord Mayo, Stephen addressed the question of whether despotism or legality was more suited to India. Admitting that many district officers and AngloIndian civilians still believed in the former, Stephen set out to argue unequivocally for the latter. “The curse of every despotic state,” he wrote, “is personal intrigue.”93 For the English to rely upon despotism, then, would involve them in the machinations of power, which would result in the army declaring itself the supreme authority. Law in general and legal procedure in particular, on the other hand, were entirely impersonal: they relied on no prior authority and only reflected state power, that is to say, they reflected themselves. Moreover, the codification of law represented power in a “compact, intelligible form,” providing the simplicity of rule demanded of government in India. Considering the example of Indian criminal law, in his monumental History of the Criminal Law of England, Stephen argued that the quasi-legal manifestation of despotism, which the English encountered in the form of “Mohammedan” criminal law, represented a mixture of “vagueness and technicality.”94 More important, this was compounded by a con-

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fused system of procedure: “The Mohammedan criminal law was open to every kind of objection. It was occasionally cruel. It was frequently technical, and it often mitigated the extravagant harshness of its provisions by rules of evidence which practically excluded the possibility of carrying them into effect.”95 By contrast, Macaulay’s Penal Code, according to Stephen, was the ultimate proof that a simplified power was to be found in legality rather than despotism. It comes as little surprise, however, that the main force of Stephen’s argument against despotism is articulated in a moralistic idiom. This moralism associated with legality is used to argue against both an indigenous despotism and the English system of nonregulation. While the latter is more dedicated to the public good, insists Stephen, without a uniform system of procedure it cannot claim the moral stature of legality. The establishment of law, therefore, once again begins to echo the discourse of a civilizing mission: it is the moral responsibility of the English to be bound by laws in their rule. Thus the moral force of law becomes a possibility, indeed, an imperative. Throughout Stephen’s texts, we encounter an interesting emphasis on morality and power, combined in a Weberian understanding of the distinctiveness of law as a monopolization of violence. Noting that despite Maine’s interest in the institution of the village community, their breakup is not to be lamented, Stephen explains that “the reason why village communities and other forms of joint property break up under our rule, is simply that the law permits no violence, and ultimately no coercive authority, except its own.”96 Law does not simply omit violence but regulates it, and this moral regulation, as I have argued, may be located not so much in the substantive aspects of the law as in legal procedure. Indeed, Stephen’s major accomplishments during his tenure as law member from 1869 through 1872 covered this aspect: the Evidence Act of 1872 and the revised Code of Criminal Procedure of the same year (see appendix B). The ideological stakes in the notion of procedure, therefore, were quite high—a fact we should keep in mind as we attempt to understand the controversies over the regularization of administration and the deployment of extralegal force.

Chapter 3

The “Writ of Liberty” in a Regime of Conquest: Habeas Corpus and the Colonial Judiciary

In J. H. Baker’s Introduction to English Legal History there is a surprising opening reminder to those who would assume the writ of habeas corpus has always stood for the protection of individual liberty against state power: “the writ of habeas corpus has become the principal safeguard of personal liberty. It is not a little ironic, therefore, that its original purpose was not to release people from prison but to secure their presence in custody. The words habeas corpus (have the body) occurred in the common judicial writ of capias, in the Chancery subpoena, and in the habeas corpus joratorum to compel the attendance of jurors.”1 In Edward Jenks’s “The Story of Habeas Corpus,” there is a similar moment where, in investigating the origins of Blackstone’s great “writ of liberty,”2 Jenks makes “the most embarrassing discovery . . . that whatever may have been its ultimate use, the writ Habeas Corpus was originally intended not to get people out of prison but to put them in it.”3 Whether as ironic aside or abiding embarrassment, these moments are of central importance, for they underscore the way in which the history of habeas is a history of increasing and ultimately complete legal institutionalization. Capias enforces the writ (Latin: “that you take”) by literally capturing the body and bringing it into law. As a mode of questioning the legality of punishment, what began as a writ of sovereign privilege was converted by Lord Coke and his successors in the seventeenth century into a subject’s right of appeal. But the subject praying for the writ would remain deeply implicated in the circuits of sovereign power. Coke had argued that habeas was a protection that grew out of a reciprocal subjection and allegiance, and 69

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following him Lord Montagu confirmed this formulation by insisting that habeas was itself a “prerogative writ . . . for the King ought to have an account why any of his subjects are imprisoned.”4 In fact, it is through such a reasoning that the writ itself facilitates the mobile extension of sovereignty into the colonial domain: “it is laid down that the King may send his writ of habeas corpus ad subjiciendum to whom he pleases . . . and it runs at common law to all the dominions of the Crown.”5 The extent of the king’s sovereignty is understood by where the “writ runs,” where it can be issued and enforced.6 Thus, whether in its origins as a facilitation of sovereign power or in its subsequent and modern guise as a check on the executive, whether used to intern or to free, habeas corpus is a mode of binding subjects to the law and to its economies of power. Even in its widest application, the writ demands clarification not of the correctness or “justice” of an imprisonment but only of its lawfulness. This preliminary and demystifying gesture is a necessary introduction to this chapter, which examines the structure of the colonial judiciary in general and the right of habeas in particular, because the burden of this focus is not to prove or disprove the existence and extent of individual rights in British India, but to examine the disparate ways in which law posits legal subjects, and extends and consolidates state power. As I said earlier in the introduction, this chapter is better understood as a hinge between the previous chapter’s elaboration of notions of legality and the analysis in the next chapter on emergency and martial law. I examine the history of habeas here apart from the usual suspension of the right that follows the declaration of emergency. The suspension of habeas corpus is generally taken as a marker of emergency in general. Indeed, habeas and the question of emergency powers in general would seem to be deeply implicated. As Sharpe notes, “most of the habeas corpus cases challenging executive power arise in times of war and emergency, and conversely, the most significant block of cases interpreting emergency powers are the habeas corpus cases.”7 While it is certainly true that most examinations of emergency powers involve court cases about the suspension of habeas, the history I examine here is a broader one. It involves both a series of cases regarding the powers of the executive, more specifically the Crown and its representatives within British law, and a series of cases from colonial India regarding the right in general to the relief provided by habeas corpus. As such, I

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continue my analysis of the legitimating project of procedural legality and extend it to how the project of rights may be understood in the colonial environment. Certainly, the claim that the legal subject is not presupposed by law but rather is created by the operations of its power is no longer a novel or controversial one. It has been a quarter of a century since Michel Foucault directed our attention to a more fluid and constitutive conception of power and exhorted us to understand that the individual “is not the vis à vis of power; it is one of its prime effects.”8 In the last few decades, an Anglo-American legal scholarship has taken up this challenge, producing a body of work that exposes and critiques the putatively universal and ahistorical subject of liberal theory by placing it in specific contexts and contingencies.9 The focus on context and contingency does not necessarily entail a nihilistic conception of rights, whereby their normative truth-value disappears. It does, however, as Neal Milner has shown, place the legal understanding and mechanism of rights in a wider field of operation, a political terrain where rights may be understood as “another resource that can be used to convince others how to behave.”10 Such an emphasis on persuasion and influence places the form and function of rights into a Foucauldian theory of governmentality, a theory of power, after all, directed at bodies and conduct, not wealth and extraction. Given that some critics have argued that Foucault’s analysis diminishes the role of rights and law in the scheme of modern government, such a placement may turn out to be a bad fit.11 But if, as we considered in the previous chapter, one reads Foucault’s concept as a complex palimpsest of sovereignty and normativity, the understanding makes sense. Thus one should not regard the “embarrassing origins” in the genealogy of habeas corpus in England as simply giving lie to its later guise as a fundamental right of liberty. Quite the contrary, it is precisely the transformation in the seventeenth-century constitutional struggles, whereby the king’s high prerogative writ becomes “the great engine for defeating the King’s own orders,” that is of import here.12 In the great English constitutional struggles of the seventeenth century, habeas corpus assumes an indicative function far beyond its own potential. Maitland once remarked that “at more than one moment the whole history of England seems to depend on what it is possible to describe as a detail of criminal procedure—the question whether ‘He is committed to

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prison per speciale mandatum domini regis,’ is or is not a good return to a writ of habeas corpus.”13 More than the production of a right, new or otherwise, habeas corpus indicates a maneuver in the production of a new configuration of law and sovereignty. The sovereignty of the king is not so much eclipsed as it is fractured and disseminated. And the new recipients of this dissemination are to be the juridical subject of the law, on the one hand, and the staging of that subject, the institutional structure of law and state, on the other. Giorgio Agamben, pursuing his interest in the development of modern sovereignty and its focused labor in the production of “bare life,” is instructive here. As opposed to the story of the ancient rights of Englishmen, which would directly trace the writ back to the ‘nullus liber homo’ clause of the Magna Carta,14 Agamben asks us to concentrate on who or what is being demanded in the celebrated Habeas Corpus Act of 1679: “not the free man and his statutes and prerogatives, not even simply homo, but rather corpus that is the new subject of politics . . . habeas corpus ad subjiciendum, ‘you will have to have a body to show.’”15 When the act of 1679 provides a recital of the writ, it literally asks for the production of X apud Westminster. Here there is no liber homo or even ab homine but just an X body that awaits the law, awaits its demand and protection. Here it becomes clear why habeas corpus is so suitable a procedure to the disparate situations of the various colonies. The extension of habeas is nothing less than the extension of a new form of legality, and the court must protect from tyranny not the resident of Bengal or the citizen in Majorca, but a corpus, anonymous and indistinguishable, but for the fact that he is a subject of the king’s law, a subject that he may sometimes only become in the very operation of the writ. But we must go further and add another question to this already perplexing story. Why is it that if the act of 1679 enshrines habeas as a right of the subject, what follows in less than a decade in 1688 is the first of the so-called Suspension of Habeas Corpus Acts? Here the colonies may once again offer us insight into the new formations of law and state. After all, to speak of habeas in the colonies, to examine the writ of liberty in a regime of conquest, is to enter the quality of an oxymoron. But it is this regime of contradiction that may just show us the stakes in the historical processes by which a right is extended and subsequently suspended—something very different from its not being introduced in the first place.

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Indeed habeas is a particularly good candidate for such a critique, as it shifts the focus on rights in a colonial context away from the overdetermined site of property to the more neglected and fluid site of procedural liberty. Here, John Comaroff’s work on rights and modernity in South Africa serves as a reminder that an overwhelming, almost exclusive focus on property rights can eclipse important questions of how colonial rights coincide with new state forms and produce new legal and political subjects.16 It is because habeas is a right and a form of appellate procedure that it allows us to examine the issue of rights in the specific frame of governmentality. That is to say, habeas is a good reminder to historians working on colonial law of how the “introduction” of rights and the emergence of new institutional forms must be read as coincident. Thus if one looks at the work of David Washbrook, for instance, it is the almost totalizing ideality of law and legal processes in general that makes an otherwise informed reading of law and the colonial state so skewed.17 For Washbrook, not only does the extension of property rights stand in for legality in general, but also the task of the courts is posited as the vindication of these property rights. By this standard, of course, Washbrook can dismiss much of the judiciary’s development in the colonial regime and also dismiss claims of justice as “slow and arduous as a near limitless number of appeals prolonged litigation interminably.”18 Legal sociologists from Max Weber onward have focused on the role of rights and the development of appeals as part of a new economy of power. Thus Martin Shapiro, in a comparative context, insists in his book Courts that we be more skeptical of the claims of judicial independence in the West. “Judges and Courts,” Shapiro argues, “are best seen as special facets of administration”—and “the appeal which is usually viewed as a process for the vindication of rights, is more properly seen as a device by which central political regimes consolidate their control over the countryside.”19 Such an insight is equally true of colonial India, where the administration of justice and the consolidation of rule are historically symbiotic, and where the question of rights makes little sense (if it ever does anywhere) outside the institutional structure of the state. In colonial India, where we may be surprised to find the writ at all, habeas corpus suffers a peculiarly regressive history. Introduced into India in an almost incidental manner through the jurisdiction of the Crown court in Calcutta, the writ enjoys a limited but effective place in

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the early nineteenth century, issued against both executive officers and civilians, and eventually passes into the jurisdiction of the government of India’s High Courts, as they inherit the combined powers of Crown and East India Company courts in 1861. In the late nineteenth century, however, through a series of judicial decisions and legislative enactments, the power of the High Courts to issue the writ against the executive is limited almost to the point of nonexistence. While the story of the writ is thus summarized, we must draw particular attention to the mode of reasoning by which the Court’s jurisdiction is curtailed. For it is the latter that involves the evocation and ultimately the legal recognition of an emergency executive power that is nonjusticiable and more or less permanent. The scope of this power is slowly written into legislation and judicial precedent, and becomes deeply embedded in the structures of the colonial (and, indeed, one could plausibly argue the postcolonial) state. An effort to trace the doctrinal history of habeas thus inevitably raises larger questions of the structural position of the judiciary, the ideology of authority, and the rhetoric of emergency in colonial India. Contestations of Power Before turning to early colonial India, it is worth noting that from the late seventeenth to the middle of the eighteenth century there are a number of cases that contend with colonial executive power and judicial review. Thus, well before the celebrated trial of Warren Hastings, English jurisprudence had developed a virtual case law on the potential despotism of the governors-general and the need to define the constitutional limits to their power. These cases are crucial, for without noting their systemic and symbolic value, it is difficult to understand what animates later discussions of legal protection and judicial review. While it is true that these cases are not about habeas corpus but often about civil damages for false imprisonment, they are nonetheless relevant here for a number of reasons. First, in English common law the remedy of habeas corpus for wrongful imprisonment was thought to be necessarily concomitant with the recognition of civil liability for the same trespass. Otherwise, it was argued, there would exist the anomalous, even absurd situation of a prisoner prevailing in his case and even winning substantial damages only to continue to languish in jail.

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Second, and more significant, these cases invoke the symbolism of habeas corpus even when they do not technically involve the writ. How are we to read the curious symbolism that attaches to these cases? In some basic sense, of course, they are not symbolic at all, as the imprisonment they examine and the release they order are quite actual. For us the symbolism would seem one of historical irony, of the act of conquest rationalized and administered through the charge of false imprisonment. To the petitioners and judges of the cases there is a more earnest and historical symbolism. These cases become microcosmic repetitions of England’s own historical struggles against an absolute sovereign power. To read this archive is to be struck by the weight of seventeenth-century arguments about monarchical prerogative and lawful rule on the new terrain of colonial power. With the question of colonial governance, the dynamic of prerogative and restraint is the precise mode of the negotiation of a balanced colonial power; it is the form of accusation and defense in the charges of unauthorized power. Moreover, claims of prerogative and restraint acquire a symbolic force in colonial debates, acting almost as shorthand in arguments over what kind of power is needed for colonial governance, and what sort of polity can be established in a regime of conquest. The claim of discretionary action under prerogative is made, of course, not in the person of the monarch but by those claiming to act as his representatives—usually governors-general, but not always, for as we shall see in India with the defense of Sir Elijah Impey, first chief justice of the Supreme Court at Calcutta, judges too could claim the authorization of prerogative in answering the charges of Parliament. It is, therefore, not surprising that the charges and countercharges over the actions of colonial officials take the shape of a question of the source of colonial power. Even if an absolute power is needed for efficient colonial governance, it will be argued, such a power cannot be found in the British Constitution. And if it can, then how much more threatening are the constitutional implications of the colonies? The first case I consider here, Dutton v. Howell, was heard in the House of Lords in 1693, in a matter of scire facias from the Exchequer Chamber for damages awarded for false imprisonment.20 Howell, the executor for the estate of John Witham, the former deputy-governor of Barbados, claimed that the council and the governor of Barbados, Sir Richard Dutton, had illegally held Witham in prison. Since Barbados, it

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was claimed by the plaintiffs, was a plantation, all of English law would apply there, including the common law. Thus the argument against Dutton was that Liberty of Person of our Law is so sacred that every Restraint of it must be justified by some lawful authority and that Authority must be expressly pursued21 . . . As to the commitment by a Council of State, what it means is hardly known in the Law of England; and that Authority which commits by our law, ought to be certain, and the cause expressed, as all Arguments upon the Writ of Habeas Corpus in old Time do shew.22 If the plaintiffs tried to emphasize the sacred liberty of English subjects, the defense for Dutton claimed for the governor an absolute authority, subject only to the king. Moreover, Dutton’s defense introduced a line of argument that was to repeat itself in numerous trials of officials in the colonies: it claimed the particular differences and exigencies of the colonial situation as justification for a more elastic conception of restraint. The laws there differ from what they are here; and Governments would be very weak, and the persons intrusted with them very uneasy, if they are subject to be charged with actions here for what they do in those countries; and therefore t’was prayed that Judgement should be reversed.23 In fact, this was the precise point that won the case, as the Lords refused to debate the applicability of English law, of whether Barbados was a conquest or plantation, but instead decided the issue in favor of Dutton on the narrow ground that councils of state in the colonies must have the power to commit a delinquent.24 The issue of the powers of a governor-general, the claims of prerogative and local exigencies on the one side against restraint and accountability on the other, were to be raised again in front of Lord Mansfield in 1774. Mostyn v. Fabrigas was heard at the King’s Bench in an appeal from the Court of Common Pleas, where the plaintiff, Anthony Fabrigas, a native Minorquin, had won a jury award against the governor of Minorca, John Mostyn, in a case of trespass and false imprisonment.25

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The defense of Governor Mostyn rested on two assertions. First, they claimed that a cause of action arising in Minorca with a native could not be examined in English courts: “The cases where the courts of Westminster have taken cognizance of transactions arising abroad, seem to be wholly on contracts.”26 Second, and perhaps more important, they drew attention to the administrative structure of Minorca and the sections of it directly and uncontestedly under the governor-general. Minorca was ceded to the British by the Spanish in the Treaty of Utrecht (1713). While Spanish law continued in various forms in the four divisions of the island, the fifth enclave, the Arraval of St. Philips, was said to be directly under the governor acting under Royal Prerogative. Here, it was claimed, no magistrate could exercise any function without the governor’s prior approval, and even “Judges cannot interfere but by the Governor’s consent.”27 Thus, the defense of the governor rested on by now familiar assumptions of local exigencies and assertions of prerogative. It demanded that the dictum of Dutton be reaffirmed, so as not to make governments in the colonies weak. The respondents in the appeal countered these two arguments with a telling rhetoric. To the first objection, they reiterated Calvin’s doctrine, insisting that “every person born within the ligeance of the King, though without the realm, is a natural born subject, and as such, is entitled to sue in the King’s courts.”28 But their explicit charges of despotism were reserved for the second point: It is contended that General Mostyn governs as all absolute Sovereigns do, and that stet pro ratione voluntas is the only rule of his conduct. From whom does the governor derive this despotism? Not from the King, for the King has no such power, and therefore cannot delegate it to another.29 Furthermore, the respondents argued that the precedent of Dutton did not apply in the present case, as that case involved the right of a council of state to commit and the present case represented the violation of power entrusted to the governor himself. Lord Mansfield, in affirming the judgment against Governor-General Mostyn, was emphatic in his declarations on various points. The question of a native-born subject’s right to sue in the king’s courts was “wisely abandoned,” as no doubt could exist that a king’s subject out-

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side the realm had as much right to the king’s justice as one “who is born within the sound of Bow Bell.”30 As for the governor, Mansfield claimed that not only was he liable to be sued, but that the king’s court had a particular jurisdiction over him. Although, Mansfield argued, most causes arising in dominions should be tried in the courts of that dominion, a cause attached to questions of authority created by letters patent could only be tried in the king’s courts, as matters of the seignory could not be tried within the seignory.31 Mansfield thus created a particular and almost exclusive power for the high courts of England, even as he indignantly dismissed the defense’s claims of a nonjusticiable prerogative: So that emphatically the governor must be tried in England, to see whether he has exercised the authority delegated to him by the letters patent legally and properly; or whether he has abused it in violation of the laws of England, and the trust so reposed in him . . . Therefore to lay down in an English Court of Justice such a monstrous proposition, as that a governor acting by virtue of letters patent under the Great Seal, is accountable only to God, and his own conscience; that he is absolutely despotic, and can spoil, plunder, and affect His Majesty’s subjects, both in their liberty and property, with impunity, is a doctrine that cannot be maintained.32 With the rhetorical force typical of so many of his opinions, Lord Mansfield articulates here the essential idea that I have been suggesting through this consideration of despotism in English political and legal tradition: the peculiar and complicit place of despotism within English law itself. Within the historical negotiation of prerogative and restraint, despotism appears as a constant potential, a figure called forth by that very negotiation. It is, therefore, no surprise that the explicit condemnation of power as despotic occurs in court cases arising out of the colonies. From Calvin’s Case onward, it was the colonies where the prerogative of a law giving function outside the scope of Parliament could be exercised, and consequently it was the colonies that represented the fear of a British despotism. Locke’s philosophy of law and compact, far from disputing this arrangement, actually gave it a place in regimes of political consent. Prerogative was not something that could be dispensed with, no matter how potential the threat of its abuse remained.

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This is not to suggest that despotism was not projected onto the political systems of the Orient or that it was not set up in counterpoint to the lawfulness of English politics—that was to be a consistent understanding—but it is to suggest that one should not overlook the shadowy presence of despotism within the conceptualization of an English constitutionalism. Without noticing such a presence, it is not possible to understand the particular emotional energy that produced the volumes of debate on the lawfulness of regimes of conquest and colonialism, or the specific arguments in the emerging administrative structures of the colonies. The administrative structure of justice that finally emerged in nineteenth-century India was mostly the end point of a haphazard amalgam of different courts, jurisdictions, and authorities. As we have seen, under the East India Company, there were, in fact, two parallel systems, divided by classes of juridical subjects: Crown courts, instituted directly by the monarch through charters and letters patent, held jurisdiction over all the residents, native and European, in the presidency town of Calcutta, and over British subjects in the mofussil, while Company courts, themselves a mixture of precolonial institutions upon which the Company had grafted new offices and jurisdictions by regulation, held authority over the natives in the mofussil. In the earlier part of the eighteenth century, the Royal Charters of 1726 and 1753 responded to the needs of growing commercial activity in Calcutta by setting up a Mayor’s Court for civil suits and a Court of Oyer and Terminer for criminal matters. Outside of Calcutta, most native disputes were resolved through the village tribunal of the Panchayat, and the Mughal officers of Nazim (for criminal matters) and Diwan (for civil suits) continued to operate independently (see appendix A for details). The existing system was to change significantly in the years 1772 and 1773. Warren Hastings’s reforms of 1772, the year before the Regulating Act was passed by Parliament, focused not only on the administration of justice but also on police matters and revenue collection. Hastings’s Scheme for the Administration of Justice (1772) set up adalats as courts of first instance in the mofussil and created an appellate structure, with the Sadr Nizamat Adalat responsible for criminal cases and the Sadr Diwani Adalat for civil suits (see appendix A, no. II). Around the same time, the Regulating Act of 1773 further altered the institutional structure. The act set up a governor-general and council of four in Bengal,

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investing them with executive and legislative powers for the town of Calcutta, with jurisdiction and supervisory control over Madras and Bombay (13 Geo. III, ss. 36–63). Hastings became governor-general, and the council of four initially consisted of Barwell, a company servant and resident, joined by Clavering, Monson, and Francis, who were to unite in their opposition to Hastings. Additionally, the act of 1773 empowered the king to use charters and letters patent to erect a Supreme Court, consisting of a chief justice and three other judges, and absorbing and expanding upon the various jurisdictions of the Crown courts hitherto in operation (13 Geo. III, ss. 13–22). Accordingly, a charter of 1774 set up the court with Sir Elijah Impey as its first chief justice. This was to be the system in force in India till after the Revolt of 1857 and the end of the Company state, when in 1861 the Indian High Courts Act set up new High Courts in the cities of Calcutta, Madras, and Bombay. These High Courts combined in themselves the previous jurisdictions and authority of both the adalats and the Supreme Court.33 Much has been written then as well as now on the varying consequences of the Regulating Act of 1773, including its ramifications for the American colonies, but for our purposes this much may be safely concluded: the act institutionalized two distinct sources of authority in the colony and two distinct sources of law. In the absence of any clearly assigned legislative function, both the governor-general and council, as well as the Supreme Court, were in the position to supply laws as needed. The governor-general and council were vested with all political and executive power, capable of making not only Company regulations enforceable in Company courts but also bylaws for the presidency town. On the other hand, the Supreme Court with civil and criminal jurisdiction over all residents, British and native, in the presidency town of Calcutta, and over British subjects throughout India, became the instrument for the extension of not only specific English laws into India, but also the fundamental “principles” of the king’s justice. Within any introduction to the position of the judiciary in colonial India, these early fights deserve particular attention because they reflect a foundational schism in the conceptualization of authority. The confusion surrounding the question of sovereignty in early colonial India—the question of whether India was to be considered a Crown colony subject to the exercise of royal prerogative or whether the Company state was to be paramount in India due to its grant of sovereignty from the Mughal Empire—is reflected in these early disputes between

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Court and council. The decade following the Regulating Act of 1773 witnessed intense contestations over authority between the Supreme Court and the governor-general and council. There can, however, be little doubt that although Impey was concerned with securing the position of the Court in an inchoate political system, he was also moved by a concern to provide for those under his jurisdiction a legal protection from discretionary power, even if that might be the power of his countrymen’s government. Early in 1775, he wrote to the governor-general and council, insisting that “though the natives are without Question under your General Protection, they are more immediately so under the laws. I have no doubt but the laws will be found to be in practice what they are universally esteemed in theory, a better security to the people than the discretionary power of any council.”34 It is, in fact, in 1775 that we have Impey issuing the very first writ of habeas in India. Caught in a test of wills with the East India Company and its administration soon after his arrival in India, Impey issued the writ for one Kemaluddin Khan, a revenue collector held by the Company over the issue of late payments.35 Impey’s understanding of his authority to issue the writ was drawn, as was so much English legal dicta of the late eighteenth century, from Blackstone.36 In the Commentaries, Blackstone had argued that each judge of the King’s Bench held the power to issue the writ of habeas corpus ad subjiciendum at common law, and that such power extended beyond the realm into the king’s dominions. This is a high prerogative writ, and therefore by the common law, issues out of the King’s Bench by a fiat from the Chief Justice, or any of the other Judges, running into all parts of the King’s dominions, for the King is at all times entitled to have an account why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted.37 As the judges of the Supreme Court at Calcutta were drawn from the King’s Bench and were authorized to treat a case, if the mode of proceeding was not covered in the Royal Charter, as one in England, Impey was correct in his construction of the Court’s authority. It is, however, important to emphasize that the scope of such authority, even according to Impey’s construction, was very narrow. In addition to its general jurisdiction restricted to residents of the presidency town

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of Calcutta, company servants, and only British-born subjects in the mofussil, and with no power, revisory or otherwise, over the Sadr Diwani and Nizamat Adalats, the East India Company’s final civil and criminal court for natives, the Supreme Court did not even presume the authority to issue other great writs. At the same time that Impey ordered a writ of habeas in Kemal’s case, the court denied a petition for a writ of mandamus.38 What the judges did agree upon, and what was to be the main point of contention between court and council, was that the court’s jurisdiction extended over revenue collectors and zemindars (landlords responsible for the collection of revenue). In fact, the position of these people was quite ambiguous, as the Company engaged them in a semi-feudatory arrangement, leaving their official position as employees unclear. What is interesting about this inaugural issue of habeas corpus in India is that it reiterates some of the themes I emphasized earlier. It is worth noting that the very possibility of granting the writ is tied to the institutional legal structure of the metropole. The specific institutional struggles between branches of government in an emerging postabsolutist state are thus repeated in the colony. The effort to extend the jurisdiction of the court over revenue collectors and to claim a check on the executive powers of the government was to intensify four years later over the Kasijora case (1779–80).39 Raja Sundernarain of Kasijora, a zamindar and revenue farmer, was sued in the Supreme Court by one Kashinath for bonds indebted to him. The Court believed that the case was and must be in its jurisdiction, as the bonds were executed at Calcutta, and the Raja was properly a Company servant. The Company, with the prospect of lost revenues in mind, thought otherwise and advised the Raja not to appear at the summons of the court. When the Writ of Capias returned to the court unanswered, a writ to sequester the lands of the Raja was issued, and sheriffs were accordingly dispatched. Upon arriving at the estate, however, they were forcibly stopped by the soldiers of the Company and detained there. The court could only issue a rule of contempt, but knew there was no point in including the governor-general and council in the rule. The case finally ended when on 12 March 1780 Kashinath abruptly withdrew his complaint against both the Raja and the Company. The next year two petitions were submitted to Parliament in England, complaining of the Court’s conduct: the first was from the governor-general and councilors, protesting the Supreme Court’s

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forcible extension of its jurisdiction over persons not answerable to it but to the Company and asking for an indemnification of the military actions taken by the Company against the court in the Kasijora case; the second, called the Touchet Petition, from John Touchet and John Irving acting as agents for British subjects residing in the provinces, among other complaints protested the court’s denial of jury trials for Europeans in civil suits.40 The resolution to the disputes between court and council came soon enough with the passing in 1781 of the act of 21 Geo. III, c .70—“An Act to explain and amend 13 Geo. III and also for indemnifying the Governor-General and Council of Bengal.”41 Often overshadowed by other legislation of the period, the act is an important one as it sets the relation between the executive and judiciary. The preamble exempts the governor-general and council, severally or jointly, from the jurisdiction of the Supreme Court for acts done in their public capacity. The collection of revenue is not surprisingly the principal focus of this exemption. And be it further enacted, that the said Supreme Court shall not have or exercise any jurisdiction in any matter concerning the Revenue, or concerning any Act or Acts ordered or done in the collection thereof, according to the usage and practice of the country, or the Regulations of the Governor-General and Council.42 The Supreme Court is not to have any jurisdiction over landowners and farmers of land rent (section 9), and the written order of the governorgeneral is to serve as justification for any act in any court in India (section 2). The act thus ended the court’s habeas actions against Company officials holding people for late payments. The substantive focus of the act is directed to matters of revenue, but the principle which the act embodies, that it is possible and even necessary for a certain aspect of the executive’s power over its subordinates to be nonjusticiable in the courts of the land, continues even when the practice of revenue collection is more settled. Three Cases The story of habeas corpus, as indicated earlier, is better understood not simply by the interdictory structure of institutional power but by a more complex form of legality. The writ continues to be a fungible

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device in the determination of jurisdictional zones, the development of institutional structures, and the construction of legal subjects and their normative conduct. As such, the story of disputes between the early colonial executive and judiciary is one aspect of an emerging structure, whereby the state assumes new interventionist powers by law in some cases, and it claims a sovereign immunity by law in others. Thus even after the act and its rather large statutory exceptions, the Supreme Court continues to be active in its exercises of habeas through the late eighteenth and early nineteenth centuries. Unexpectedly enough, it may have been constrained in its powers against an English sovereign, but this did not eclipse its efforts to assert its powers over the increasingly empty sovereignty of the native princes. In the case of The King v. Monisee and Others (1810), the court could insist that “a habeas corpus will lie to release persons improperly deprived of their liberty by the nabob of the Carnatic [an independent native prince].”43 Admittedly, it was more careful of the limits of its jurisdiction within Bengal, ascertaining in advance that the writ was to someone who was either an inhabitant of Calcutta or personally subject to the criminal or civil jurisdiction of the court. To this purpose, affidavits proving the applicability of the court’s jurisdiction were required with a petition for the writ. In Rex v. Goculnauth Mullick, the court, in fact, released Mullick, against whom an earlier writ of habeas had been issued, from further proceedings when it was shown that he was a resident of the mofussil and thus not subject to the court’s jurisdiction.44 Although the mofussil remained largely outside the reach of the writ, the court did decide that a party not resident in Calcutta and therefore not subject to the court’s jurisdiction was subject to the writ of habeas corpus if the abduction and taking involved a resident of the town and was within the local limits of the court’s power (In the Matter of Sreenauth Roy).45 Furthermore, in a move highly reminiscent of the original functions of the writ in facilitating the operation of judicial institutions, the court held that habeas corpus ad testificandum did at all times extend into the mofussil and could be used to subpoena a witness for a proceeding at the court.46 Within Calcutta, there are numerous cases, although no detailed reports, of the court’s habeas activity during this early period. Early on, the court demonstrated that it would interfere if suits in the mofussil courts were used to harass and detain someone subject to its jurisdic-

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tion.47 Indeed, the court was even willing to use the writ to intervene in family disputes. In the case of Muddoosooden Sandell v. Chumpuck Mollah Dabey the court issued a writ of habeas for a mother against her son who had carried her off from Calcutta in an attempt to pressure her to drop a separate suit involving inheritance.48 The fact that the writ was petitioned for and granted in such instances suggests that habeas corpus as a legal remedy had found a place in the social relations of earlynineteenth-century India. Although the focus of our analysis has been on Calcutta, there are similar examples from the Supreme Court at Madras. Indeed, in a few cases, the Madras Court agreed to issue the writ in some surprising circumstances. In The King v. Nagapen, for example, the court issued the writ for a mother to obtain possession of her illegitimate infant in the putative father’s custody.49 And in the case of The King v. DeUrilla, it was decided that “the court will not, upon a habeas corpus, compel a young woman that is marriageable to go home with her father contrary to her consent.”50 Despite these decisions, as late as the middle of the nineteenth century, we also find the Supreme Court in Bombay deeply skeptical of the applicability of habeas to the colonial environment. Such a wealth of heterogeneous decisions, now confirming, now contradicting each other’s basic assumptions, would seem to preclude even a formalist rendering of the law, much less its substantive critique. Yet perhaps we can read these various decisions as dramatizing not a confusion but a condition, whereby the possibility and the limit case of colonial rights is folded into the law, marking the operation of its governmentality and its essential predicament. That is to say, habeas corpus indicates both the structural and normative functions of a rule of law. Law is what constructs the state in the colony and in doing so inevitably introduces new norms that may be at odds with the social and political exigencies of colonialism. In order to read this condition coherently I confine myself to three important cases in the developing doctrine of nineteenth-century colonial law. In the first case, we have a refusal to issue the writ in the name of cultural difference, and in the second, we have a granting of the writ despite the judge’s notice of such difference. In both cases, however, the writ may be read as a new maneuver in a field of governmentality, invoking, prescribing, and canceling out new expectations of normative conduct on the part of both governors and governed. In the final

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case I consider, the place and presence of habeas is again reaffirmed, but its suspension is also justified. The first case, Regina v. Shaik Boodin (1846), is decided by Sir Erskine Perry, chief justice of the Bombay Supreme Court, and reappears later in his collection entitled Cases Illustrative of Oriental Life, and the Application of English Law to India.51 Perry’s compendium is as worthy of notice as is the particular case, for both are examples of a highly anxious colonial zone in which the formal demands of rule-following and the recognition of a destabilizing cultural difference abut each other. Cases Illustrative of Oriental Life, as its title indicates, hopes to reveal the ethnographic potential of law in the colonial environment. Thus Perry in the introduction to the volume resolves that in reading these cases “the veil which shrouds the privacy of oriental life is necessarily drawn aside.”52 If anything threatens the fulfillment of this violent promise, it is the dense unreadability of an otherness that not only resists Perry’s legal/ethnographic gaze but also threatens to disrupt the confidence of his judgment. Oriental Cases, after all, is an attempt to illustrate not just Oriental life but the application of English law. In short, the compendium illustrates an operation and a limit. Natives appear in Perry’s court, and as he maneuvers between the formal and the social, we are shown the universalistic aspirations of a rule of law and its hesitation in the face of what is constructed as an intractable difference. Regina v. Shaikh Boodin thus opens with a succinct recitation of the question at hand. Counsel for the petitioner “obtained a rule to show cause why a writ of habeas corpus should not issue to the Judge at Ahmednuggur to bring up the body of Shaikh Mahomed Boodin, late Kotwal of Poona, who was confined in prison there under a sentence of a Native Court martial.”53 The Court under Justice Perry decided that it lacks the jurisdiction to review the proceedings of a native court. Indeed, it went further, perhaps unnecessarily so, and declared the inappropriateness of the writ in a country such as India. Such an assertion, of course, puts it at odds with “venerable” authorities such as Lord Mansfield. The question, then, of whether decisions of a Company court are to be reviewed under a Crown court prompts a lengthy discussion that takes us by analogy to the far corners of the empire. The geography of conquest and the reach of English constitutional principles can be neither coincident nor independent of each other. Their meeting in the highly negotiated question of jurisdiction requires

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that powers and precedents are attended to, and analogies to other parts of the empire be invoked and discarded. Thus, as I stressed earlier, if the power of Supreme Court judges in India was derived from their position as appellate judges of the Queen’s Bench, then comparisons between the competency of that court and its colonial counterpart are in order. But here another and more vexing comparison arises. If it is settled that the principles of English law can and do apply to another part of the empire—the conquered territories of the Channel Islands— how and on what grounds is India to be distinguished from these other examples? Here there is little left for Justice Perry to do but to return to the now familiar argument of an intractable cultural difference that requires the continuity of that fiction of precolonial sovereignty, Oriental Despotism. English cases and decisions may find a counterpart in the European environment of the Channel Islands but not in India. Nor is the reason of this difficult to ascertain, for in a case arising in this country, however similar many of its leading features may be to those of a reported case in England, there is always wanting that similarity of circumstance which pervades all English cases, arising from race, history, religion, and constitution, and which form the unnoticed but not the less well recognised substratum of every English decision.54 Here is a description that attends to both the form and spirit of law in a way that Montesquieu would have fully recognized. Cases in India are not just disabling to the principles of law but, more important, they are disassembling as well. Complete with legal phrases, features, and actors, which any English lawyer would recognize, yet wanting in the spirit of civilization, these cases force the formal understanding of the legal and the management of the social to confront each other and puts both into crisis. Perry’s skepticism about the basic suitability of the “writ of liberty” in the colonial environment, although affirmatively noted by other judges, is not carried through to its conclusion. It is almost as if, mindful of the crucial labor of institutionalization and subjection that is performed by the workings of the writ under the name of personal liberty, the colonial judiciary is unable to revoke the right altogether. This is evident in the next two cases we shall consider, both from after the

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Revolt of 1857 and the consequent changes in the institutional form of government. The revolt was a traumatic and transformative event in the history of British rule in India, as it ushered in large-scale changes in the institutional structure of the state. The catalyst of the event was the mutiny of sepoys in the Bengal Army in May 1857, over the immediate grievance of being forced to handle rifle cartridges sealed with the grease of pig and beef fat (dietary anathema to the Muslim and Hindu soldiers respectively). This initial defiance rapidly escalated into a full-scale revolt, with large numbers of people of different class and caste affiliations, and for different and complicated reasons, throwing their support behind the authority of the Mughal Emperor in Delhi. While large swaths of territory in northern India remained entirely out of the hands of the British for up to a year, the revolt was ultimately and ruthlessly crushed by the middle of 1858. What followed this immediate military suppression was a more protracted political reevaluation, which arguably ended in 1876 with Queen Victoria being declared Empress of India.55 This political reorganization swept away the old East India Company, which had long since ceased to be a trading concern, and replaced it with the direct imperial authority of the Crown. The presidencies of Bengal, Madras, and Bombay were consolidated under the centralized control of the governor-general, later the viceroy, with a corresponding control in London under the secretary of state for India. The Revolt of 1857 not only changed the perception of how power should function in a regime of conquest but also precipitated significant changes in the institutional structure of the colonial state. While the Indian Councils Act of 1861 gave the governor-general broad legislative power and executive control, we must not presume that such power was without precedent. The earlier Regulating Acts provided the executive with significant power subject to the “non-repugnance” clause, whereby local regulations could not be contrary to the “laws of the realm” (see chap. 2). What would amount to repugnance, however, was a more vexing question, and one left largely unanswered through the first half of the nineteenth century. The nonrepugnance clause certainly did not prevent governors-general from passing regulations that provided the power to declare martial law in moments of emergency, or which even provided a nonjusticiable power in times of peace over

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matters deemed “state offences.” Regulation III of 1818—“A Regulation for the Confinement of State Prisoners”—is a good example: 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, or when such proceeding may not be adapted to the nature of the case, or may for other reasons be inadvisable or improper.56 Moreover, given the emphasis that some historians place upon the Revolt of 1857 as a psychological turning point, an event that supposedly replaced a putative tolerance with a siege mentality, it is important to emphasize that such regulations are prior to and deeper than this singular event. The revolt certainly had its consequences, but the effect was more of an enlargement of such powers and regulations rather than the origin of them. In that respect, 1858 was not surprisingly a busy year. Act III of that year, for example, extended Bengal Regulation III mentioned previously to all British territories, including Supreme Court jurisdictions, and specifically repealed sections of other codes that posited that arrest and confinement could not be made in breach of applicable British laws.57 Ultimately, the scope of habeas writs was enlarged, at least in theory, when in 1861 the Indian High Courts Act (24 & 25 Vict., c. 104) created the high courts by combining the powers and jurisdictions of the Crown and Company courts. Just six days before that act, however, the Indian Councils Act (24 & 25 Vict., c. 67) had given the governor-general in council substantially larger legislative powers, including certain powers over the high courts. Section 22 of the act, which was to be the focus of later constitutional challenges, enlarged both the governorgeneral’s and council’s legislative power and the qualifications upon it. It gave power to make laws and regulations for all persons, whether British or Native, Foreigners or Others, and for all courts of justice whatever, and for all places and things whatever . . . which may not affect . . . any part of the unwritten laws or constitution of the United Kingdom of Great Britain and Ireland, Whereon may depend in any

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The new institutional structure, therefore, perpetuated the ambiguous relation between the governor-general and the judiciary, which had been a feature of the state structure from the very beginning of British colonial rule in India. The question remained whether the courts could intervene in certain instances in which the executive claimed the power to detain without trial, such as the state offenses covered in earlier regulations. In The Queen v. Vaughn and Another. In the Matter of S.M. Ganesh Debi, alias Mani (1870), we have an example of the confrontation between formal legal status and social exigencies. Additionally, In Re Mani is a fascinating glimpse into the legal mediation of a whole complex of colonial social relations.59 The case involves a young woman, Mani, who leaves the home of her widow mother and elder brothers and enters into the custody of J. M. Hazra, a native convert, and Reverend J. Vaughn on the Church Mission in Calcutta.60 The girl’s family seeks out the political help and legal representation of the Brahmo Samaj, an organization that in response to missionary activity was dedicated to the reconstruction of Hinduism.61 If Reverend Vaughn and his missionaries reiterate for us the fact that evangelism operates, as John Comaroff has shown, through the trope of the modern figure of the free individual,62 the interest of the Brahmo Samaj in recovering the girl from the missionaries is not hard to imagine. Upon petition then the court issues a writ of habeas to Reverend Vaughn, the return to which is an affidavit professing that the girl is over the age of consent, sixteen, capable of personal discretion, and has freely chosen to convert and live in the Church Mission. On the other side, counsel for the family insists that Mani is a minor of thirteen and a half to fourteen years of age. Moreover, they argue, by Hindu law, a young woman of any age is the responsibility of her father or husband and their kinsmen and is barred from exercising a personal legal discretion. The questions before Justice Phear in the Bengal High Court are numerous and technical. What is to be done in the absence of any statutory declaration of the age of consent (the penal code implies that it is sixteen)? Are the affidavit and its assertions a sufficient return? Can its

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facts be controverted or litigated, or must they be accepted tout court? And beyond these questions lies the more basic and difficult issue of the status of women in Hindu law versus the personal liberty of all British subjects. It is, of course, this last question that turns the dispute into a delicate case of cultural confrontation or, as the court puts it, “a contest between creed and creed, and perhaps race and race.”63 In what can only be described as an anxious opinion, Justice Phear decides that Mani is above the age of consent and is capable of exercising personal discretion. He will not therefore, upon habeas, compel her against her will to return to her family, but will upon her appearance before the court instruct her of her liberty to do what she chooses. This is not done easily, for the judge finds Mani to be singularly ignorant of Christianity, the subject of her avowed interest, and altogether indifferent to the full consequences of “the perilous step of leaving the society of those that have been about her all her life, and [going] to strangers whose very names she does not know.”64 If these considerations were not potentially disabling enough, there is the additional and significant argument of the dependent status of women in Hindu law. For Justice Phear, however, to concede to such an argument is to suspend the presumption of personal liberty and will that the law requires to operate altogether. It is true that Mr. Ghose referred me to some venerable and venerated precepts of Hindu sages which have the effect, as he himself said, of placing a woman in a legal dependence on the males of her family for her whole life. If, on the occasion of this return, (where I may remark I am not trying and adjudicating upon a question of civil rights as between party and party), I am bound to give weight to this class of authorities, this consequence must follow, namely, that no woman of any age could be liberated from restraint placed on her by the head of her family, notwithstanding it was completely against her will, and such a result would, in truth, amount to a suspension of the Habeas Corpus Act for all female members of the Hindu community.65 As we approach our final case, then, let me reiterate that we have mapped out a particular discursive configuration, which appears for colonial discourse in the form of a problem to be solved. On the one

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hand, racial, cultural, and political factors are repeatedly invoked to insist that the right of habeas is neither feasible nor applicable to the extremis of colonialism. On the other hand, the colonial life of the writ of habeas cannot be summarily extinguished, for too much rests upon it on a number of levels. On an institutional and ideological plane, the writ is the source and sign of the historically specific and jealously guarded power of the judiciary. On a level of political rationality, the writ facilitates the very operation of law. What is required then is the maneuver of suspension. In the Matter of Ameer Khan (1870) was a petition for a writ of habeas corpus.66 Ameer Khan had been arrested in Calcutta in July 1869 and taken to a mofussil jail. A warrant of arrest had not been furnished, nor was the prisoner’s counsel advised of the charges against the prisoner. The only information given by the superintendent of the jail was that the prisoner was held under special orders covered by Regulation III of 1818 (which we may recall allowed the governor-general to detain people in certain instances without a judicial proceeding). At the initial proceeding, counsel for the petitioner argued that if Regulation III did authorize such an arbitrary detention, it would itself have to be considered bad law: No colonial legislature can pass an Act repugnant to section 29 of the Magna Carta. This regulation is beyond the powers given to the Legislature by 13 George III, C.63, S. 36. That statute gives power to pass such enactments as are just and reasonable and not repugnant to the laws of the realm. A nominee has less power than an elective assembly, and an elective assembly has no power to pass laws repugnant to fundamental principles or to the laws on which allegiance depends.67 On the other side, the advocate general simply argued that this detention was an act of state over which the court could claim no jurisdiction. Justice Norman, the presiding judge, however, issued a rule nisi, calling on the superintendent of the jail to show why a writ of habeas should not issue. At the full hearing, the advocate general argued that all of English law had never been introduced into the colony, and for this reason the

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Habeas Corpus Act was inapplicable. The courts had already agreed, the advocate general argued, that certain aspects of English law could be held as inapplicable to the situation in the colonies.68 What was applicable to India, according to the advocate general, was an absolute power, which the English had not brought to India but had simply inherited from their Mughal predecessors: “The Mahomedan law gave the sovereign absolute power over the subject, and the Governor-General has much the same power when Reg. III of 1818 was passed.”69 The political expediency of this by now quite worn out sentiment of the inherent and necessary despotism of government in India was clear enough. But to the court, whether it admitted to English law having been introduced in full into India or not, with its precedents of habeas and its combined common law and statutory jurisdictions, such an argument was more difficult to accept. The counsel for the petitioner argued that “law” was used too freely in the advocate general’s argument. The petition, after all, involved not some technical rule of inheritance but a fundamental constitutional rule that related to the status of people. The right to the protection of a writ of habeas was to be considered a natural right of the king’s subjects, and one that defined their allegiance, for as Lord Coke had argued in Calvin’s Case, protection and allegiance were reciprocal.70 Moreover, in a move calculated to add symbolic weight to the argument, the counsel not only turned to the opinions of Lord Coke but also drew attention to the arbitrary power in the hands of Charles I before the passing of the Habeas Corpus Act. This is, of course, England’s own seventeenth century, afterward and elsewhere—a historical resonance not lost on Justice Norman in his delivery of the court’s opinion. No man can study the history of England, or can read the great judgement passed by the High Court of Parliament by the Bill of Rights on King James II, without seeing that on the faithful observance by the Sovereign of the unwritten laws and constitution of the United Kingdom . . . depend in no small degree the allegiance of the subjects. It would be a startling thing to find that the rights of so sacred a character could be taken away by an act of the subordinate legislature.71

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There was simply no question, the judge continued, that the “unwritten law or constitution” of Britain defined the allegiance of the petitioner, or that the court had the power to judge the issue. The governor-general of a colony could not claim for reasons of state that the courts had no jurisdiction over the matter. The power of the judiciary is of significant concern here, and once that question is settled, Justice Norman has the task of explaining his recognition of Regulation III and consequent refusal to grant the writ. His explanation combines an emphasis on the legislative supremacy of the British Parliament with the vulnerable condition of the colonial government in India. The British constitution, the judge explains, has a “flexible character.” Thus the British Parliament could suspend the Habeas Corpus Act. The constitution “would admit of a relaxation of the rules securing private rights in times of public distress or danger, ne quid detrimenti capital respublica.”72 This principle, then, can equally apply to the colony for a more extended duration, given the conditions of colonial rule: But if the danger to be apprehended from the conspiracies of such a character as those I have mentioned is not temporary, but from the condition of the country must be permanent, it seems to me that the principles which justify the temporary suspension of the Habeas Corpus Act in England justify the Indian Legislature in entrusting to the Governor General in Council an exceptional power.73 This passage is, I believe, a crucial moment in colonial jurisprudence, as Justice Norman tries to find an essential similarity between the legal status of power in the colonies and the metropole. The exercise of power that suspends legal protections in the colony is claimed to be no different than a similar and acceptable exercise at home; the only difference is one of duration. It may be possible to read this refusal to grant the writ in the name of “the condition” of the colony as a reiteration of Perry’s insistence that habeas corpus had no place in India, but I think that would be a mistake. I would argue that this decision, with its particular form of reasoning, far from being an abrogation of the rule of law, is actually its logical completion. Justice Norman is after all correct in his insistence that habeas can and has been suspended in England itself. In fact, the very

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first so-called Habeas Corpus Suspension Act of 1688 follows in less than a decade after the statutory confirmation of the right. To the extent that habeas is a protection from state power, the situation of emergency that allows for the suspension of that protection is deeply written into the logic of a rule of law. It is true that the English acts permitted a suspension of the right for a year at a time, whereas Justice Norman allows a more open-ended suspension. But even here, this decision uncannily looks forward, for it is this and other cases that arise in the defense of British twentieth-century acts with their more extended durations: the Defense of the Realm and other wartime acts, but also so-called peacetime acts such as the Northern Ireland Emergency Provisions Act (1973) or the Prevention of Terrorism Act (1974). Conclusion To end then, we might ask if it is best to affirm, as Walter Benjamin once did, Sorel’s cynical insistence that “in the beginning all right was the prerogative of the kings and nobles—in short of the mighty; and that mutatis mutandis it will remain so as long as they exist.”74 Such a skepticism would after all reiterate the beginnings of habeas as a mechanism of confinement in England and go some way toward explaining its peculiarly nonlibertory history in colonial India. While such reminders of the “privileged” origin of rights are useful for puncturing an ahistorical and progressive aura that attaches to them, it is ultimately limited. For what we have seen in this chapter is the contingent deployment of habeas in the development process of a new political rationality. It is attention to this process, I contend, that provides the only adequate conclusion of critique. There are two features of such a process that I would note. The first is that while habeas certainly sometimes functions in colonial India to “free” people from either governmental or private confinement, to try to inscribe it within some quantum increase in freedom would be difficult. Habeas works well, one can imagine, for the young woman Mani, and not so well for Ameer Khan. It inscribes both in a system of state power that has hardly altered to this day. The second feature that must be kept in mind is that the process is an ‘’irregular’’ one, fraught with contestations within the spheres or branches of the emerging state form. It is a return to that contestation that closes the narrative and doctrinal history of habeas corpus.

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The last quarter of the nineteenth century, in fact, witnessed the increasing evisceration of the Court’s habeas jurisdiction in criminal law from a statutory source: the codification process that had been initiated earlier on and was now coming to completion. The series of Criminal Procedure Codes progressively delimited the scope of habeas corpus: Act X of 1872 thus limited the writ once again to the presidency towns, and soon after Act X of 1875 ordered the High Courts to formulate rules to replace the writ altogether.75 In 1878, the Judicial Committee of the Privy Council in the case of The Queen v. Burah reversed upon appeal a decision of the High Court at Calcutta that had found that the governor-general could not through local legislation change the jurisdiction or power of the High Courts.76 Instead, the judicial committee emphasized that although the governor-general and the colonial legislature were dependent upon the imperial legislature for their authority, nonetheless within areas of competence their power was plenary and not conditional. The decision meant that the legislative restrictions on the High Court’s habeas jurisdiction, enacted in the Codes of Criminal Procedure, were valid and could even be amplified. Consequently, the Code of Criminal Procedure of 1898 (Act V of 1898) enacted that the High Courts could issue directions in certain matters “in the nature of a Habeas Corpus,” but could not interfere in the cases involving “State Prisoners” or “State Offences.”77 There are a few instances that seem to suggest that the High Courts were not entirely passive in the process we have been considering. Indeed, as late as 1911, the Calcutta High Court was still insisting that its authority to issue writs of habeas had only been statutorily diminished but not eclipsed. In the Matter of Rudolf Stallmann involved the arrest and imminent extradition of a German subject, who had petitioned for a writ of habeas corpus.78 The advocate general argued in the case that although according to the English Extradition Act the right to a writ of habeas was possible, no such right existed in the Indian Extradition Act of 1903: “the legislature has specifically differentiated between the position here and in England . . . In India there is no prerogative writ of habeas corpus as it exists in England.”79 On the other side, the counsel for the petitioner argued that the Court’s power to issue habeas remained in matters of extradition, that it was only limited in the express cases articulated in the 1898 Code of Criminal Procedure. The Court agreed. Woodroffe, J. in his opinion insisted that matters of

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extradition were not mentioned in the Codes of Criminal Procedure, and that the large powers assumed by the government in no way interfered with the court’s powers in the matter. As Mokerjee, J. added, the court would thus insist that “the burden lies very heavily upon those who assert that a right of so much importance to the criminal as habeas corpus, given by the common law, has been taken away by implication.”80 Finally, there is a secret and confidential brief located in the records of the legal adviser to the government of India, which reflects both the executive’s efforts to institutionalize a power not justiciable in the ordinary courts and the awareness that the courts would not entirely or easily accept this. The document is an answer to a legal query by the government of India regarding its power to set up a quasi-judicial board to deal with special cases. The commission would have “special powers— not subject to the control of the High Courts—to arrest and detain persons who may seek to escape from police control and surveillance.”81 The answer given is very telling. The counsel argues that although by the authorization of the Indian Councils Act of 1861 and the judicial precedent of The Queen v. Burah, the governor-general and council could set up a new court, the High Courts would probably resist such an action: “The Indian High Courts are reluctant to admit the power of the Indian Legislatures to interfere with their jurisdiction and it is possible that the Government would have to fight the case up to the Privy Council.”82 A simpler and faster way to accomplish the government’s objective, the brief continues, would be to disavow any judicial character of the proposed commission and maintain the power of action within the executive, asserting its exceptional powers already conceded to in law. Such then were matters of legal protection and state necessity in India as they stood at the eve of World War I. The war would bring to India, as it did to Britain, the enactment of elaborate emergency measures. Once it was over, in a climate of increasing nationalist agitation, the government of India would resort to a more intense version of the process we have been considering: the declaration of martial law.

Chapter 4

Martial Law and Massacre: Violence and the Limit

In Amritsar, 13 April 1919 was a day marked by the heat and dust characteristic of the Punjab at that time of the year. General Dyer, who had been in the city since 11 April, spent the morning marching round the city, reading a proclamation forbidding the residents from leaving the city or gathering in processions or assemblies. By 1:00 P.M., however, finding the weather too hot, he returned to his headquarters. Soon after, he received reports that an alternative procession during the morning was announcing a gathering at Jallianwala Bagh at 4:30 P.M. The city was observing the fourth consecutive day of Hartal or general strike, and there were funerals being held for people shot by the military on 10 April. Adding to this tension was the fact that many people had come into the city from out of town, as it was the day of the Baisakhi festival—the Hindu New Year. It is estimated that by the afternoon some twenty thousand people had assembled in the bagh, some in open defiance of General Dyer’s proclamation, but others merely in the spirit of the festival, as the bagh was adjacent to the holy Golden Temple. By 4:00 P.M. General Dyer received information that the meeting was being held and immediately set out with his troops and armored vehicles.1 Jallianwala Bagh was actually not a park or garden at all, but an unused ground in the shape of an irregular rectangle about 250 yards long and 200 yards wide. Houses built with their back walls to the area had effectively enclosed it on three sides. The fourth side had a boundary wall of around 5 feet, with a few narrow lanes serving as exits.2 Unable to get his armored cars through these lanes, General Dyer approached the ground on foot and stationed his troops, twenty-five on either side of him. Then without any warning he opened fire. In the 99

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panic that followed, some people lay on the ground to avoid the bullets but were trampled as others rushed toward the exits. As the crowd thickened around such points, General Dyer directed the fire at them. The firing lasted for ten to fifteen minutes, and a total of 1,650 rounds of ammunition were used. Only after nearly running out of ammunition did General Dyer cease firing and withdraw, without determining the casualties or providing for any medical assistance. The official estimate later on was that 379 people had been killed, with thousands more seriously injured.3 This was the infamous Jallianwala Bagh massacre, an incident that was neither the beginning nor the end of martial law, but that came to dominate the debate around the “disturbances in the Punjab.”4 “Amritsar” became a signal event with the years, and one that was seen as contributing to the end of British rule in India, or worse, as Alfred Draper’s book Amritsar: The Massacre That Ended the Raj suggests.5 The official view was to stress the exceptionality of the event, to concentrate on Dyer’s “bad judgement” as his alone. Winston Churchill during the Commons debate on Dyer’s actions somewhat unbelievably declared it to be “without precedent or parallel in the modern history of the British Empire . . . an extraordinary event, a monstrous event, an event which stands in singular and sinister isolation.”6 The official view, which stressed the singularity of the event, insisted that what made it without parallel was not only the large number of people killed—and in this they were right—but also the flawed logic with which Dyer explained his actions. At the center of this charge was a much quoted statement from the report General Dyer made to his division command on 25 August 1919. I fired and continued to fire until the crowd dispersed, and I consider this is the least amount of firing which would produce the necessary moral and widespread effect it was my duty to produce if I was to justify my action. If more troops had been at hand, the casualties would have been greater in proportion. It was no longer a question of merely dispersing the crowd, but one of producing a sufficient moral effect from a military point of view not only on those present, but more especially throughout the Punjab. There could be no question of undue severity.7

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It is a remarkable and revealing statement that we shall explicate at some length later on. To the Majority of the Hunter Committee, however, such an explanation represented a “mistaken conception of duty.” It may have been necessary, they argued, to fire upon the crowd to get it to disperse, “but continued firing upon that crowd cannot be justified because of the effect such firing may have upon people in other places.”8 In short, much of the immediate reaction to Dyer’s violent response was to insist that it had gone beyond the province and purpose of martial law. To follow such an insistence, however, is only to push the issue back one stage, where one encounters the question, What, after all, is martial law? In this chapter, I shall attempt to answer this question in various ways. In the first part, I examine the issue from a more historicist perspective, tracking the origins and change in the meaning of this legal category, from riots in eighteenth-century Britain to nineteenth-century invocations of martial law in the colonies. Later, however, I try to extrapolate the deeper relation between law and violence that martial law demonstrates by returning to the exemplary instance of the Amritsar massacre through a reading of Walter Benjamin. The purpose of such a broad approach, particularly the comparison of colonial martial law to responses to domestic disturbances in Britain, is twofold. First, it allows us to consider the contradictions in a colonial martial law as examples of the problematic relation between law and violence in Western legal theory. The problem of placing martial law into a contained definition—and I hope to show that this is truly a problem—does not exist outside the problematic of the moment of exception within a liberal-constitutional system. Second, such a comparative approach allows us to specify the effects of racial difference on legal constructs. Thus, as treated here, emergency covers the general situation of jurisprudential doubt that exists on a continuum from military aid to civil power to the more intensified manifestation of martial law. This is not to suggest that a martial law response to emergency is identical to a response to a riot—indeed, many commentators on incidents of colonial martial law charged that the situation was misunderstood because it was compared to a “mere” riot—but it is to argue that the connections must be substantiated in order that the differences and their ideological consequences can be specified with some accuracy.

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Thus, for example, the significance of twentieth-century justifications for colonial martial law that emphasize local statutes can only be realized if they are read as a movement away from earlier justifications by unwritten prerogative. From Domestic Riots to Colonial Rebellions As we approach the definition of martial law, it may be noted at the outset that the category of martial law occupies a profoundly ambiguous place in jurisprudential writing. It is considered to be both a properly legal question and a marker of the law’s absence. On the one hand, there is recognition of the inevitability of martial law in certain situations. Here it represents the force of the state at its purest, the necessary condition if both law and state are to survive. On the other hand, we find an insistence on rules that determine the moment of emergency—an insistence that the law shall appear at its own vanishing point to determine the rules of its own failure. Martial law, like other responses to emergency, simply rested not on the authorization of ordinary law but on the legal maxim Salus populi suprema est lex (safety of the people is the supreme law). Notice how in such a formulation martial law is the manifestation of both the highest law and of no law at all. But while martial law is based on necessity, there are rules that can govern the perception of what constitutes necessity, and these rules are historically variable. It becomes possible, thus, to approach martial law as a changing cognitive question. This is why the legal history of martial law matters. Within English legal history, it is even more difficult to fix the role of martial law. Although the issue of military intervention in civil politics—specifically the aid of the army to civil power in riots and rebellions—repeatedly arose from the late eighteenth century onward, the category of martial law was not applied to Great Britain. This should not lead one to conclude, as Leon Radzinowicz does, “that the expression martial law is not known to English law.”9 Rather, both military and martial law as names and jurisdictions derived from the old institution of the Court of Constable and Marshall, itself an archaism by the late eighteenth century. Indeed, for Holdsworth, this common genealogy helped explain the persistent confusions over what differentiated martial law from the rules of the army.10 Within English jurisprudence, martial law could refer both to the Crown’s right to ordain articles of

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war for army discipline (a prerogative wholly absorbed later by statutory Mutiny Acts) and to the suspension of ordinary law by a military commander in moments of necessity. Indeed, the notion of necessity provides the main anchor in this entire juristic questioning. The maxim of Salus populi suprema est lex is the one “unbroken sequence of authority from the earliest Year Books.”11 Vigorously debated under the Stuarts and limited to wartime emergencies by the Petition of Right,12 martial law as the concession of civil power to military authorities over civilians, however, fell into domestic disuse from the Restoration onward. Yet the questions that arose upon its return in the colonies in the mid–nineteenth century were largely familiar, similar as they were to the earlier debates over the proper relation of military to civil power in moments of unrest. Despite the place of martial law in English history, and the legal affinity between martial law and responses to domestic riots, there was a persistent tendency in English jurisprudence to banish martial law from the confines of law proper. Thus we have the Duke of Wellington’s famous definition of martial law as “neither more nor less than the will of the general who commands the army. In fact, martial law means no law at all.”13 If throughout the nineteenth century the maxim of Salus populi suprema est lex provided a rationale for acts of necessity and emergency, then another maxim, inter arma silent leges, explained the lack of a judicial or constitutional authority for those acts— explained, in other words, why in war the law was simply silent. Acts of emergency may happen, but there could be no room for a prior legal authority to military adjudication in an ideology of a rule of law. As I mentioned in the introduction, no one is more emphatic about this than Dicey, who insisted that the British Constitution was distinguished by the fact that it did not cover any sense of a state of siege.14 Dicey distinguishes between two senses in which martial law is used in English jurisprudence: as what is “employed as a name for the common law right of the Crown and its servants to repel force by force in the case of an invasion, insurrection, riot or generally of any violent resistance to the law”15 and as what is used to label the condition where military tribunals supersede the civil judicature.16 It is only the first definition, Dicey insists, that is acceptable to English law. The military may be responsible for a whole area under martial law but still does not possess the right to capital punishment. Citing Wolf Tone’s case (1798),

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Dicey points out that the power of execution can only rest in the civil courts.17 Even, however, as he effectively banishes a form of martial law that had been used in the colonies in his own lifetime, Dicey provides us with a valuable clue: in order to understand the ideological and jurisprudential significance of martial law, we must read it within the general prerogative of the Crown to resort to violence to check a challenge to its authority—read it, in other words, in connection with the form of response to domestic riots and rebellions. With regard to the response to domestic riots, in addition to the accepted prerogative of the Crown to repel force by force, there existed the common law responsibility of all to protect and prevent the property of His Majesty’s subjects from destruction. This responsibility traced back to the institution of the posse comitatus. Indeed, for Blackstone, the institution of the posse revealed that “our antient law, previous to the modern riot act, seems pretty well to have guarded against any violent breach of the public peace.”18 Failure to join the posse comitatus when required was itself an offense against the king’s prerogative. While the posse comitatus was invoked into the nineteenth century,19 increasingly the need for disciplined force and the blatant lack of neutrality of those who came out against the rioters (in the agricultural uprisings, for example, it was most often landlords) led to a more exclusive utilization of the army as an aid to civil power.20 The specific legal questions that arose out of such interventions are remarkably similar to those later on concerning the conduct of authorities under martial law: essentially such questions came down to the correct amount of force that could and should be employed in moments of unrest. In England, trying to determine this quantum produced some signal instances in which magistrates and military were blamed for doing too little or too much. The Act of 1 Geo. I, c. 5, commonly known as the Riot Act, was the official and statutory response to unlawful assemblies.21 But as Brackley Kennet, the Lord Mayor of London during the Gordon riots of 1781, discovered, its particular provisions and requirements were far from clear. In Rex v. Kennet, Lord Mansfield stated that a failure such as Kennet’s to read the Riot Act and to call out the military, no matter how pure the intention to shield innocent people from accidental death, was prima facie a criminal neglect of duty. Moreover, the hour window provided for in the act did not prevent the instant use of force if so

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required.22 How much force would be appropriate, however, was left an open and vexing question. Half a century later, the courts attempted to formulate an answer in the case against another magistrate, Charles Pinney, the mayor of Bristol during the riots of 1831. In Rex v. Pinney, Justice Littledale set down a chilling exactitude as the correct response: Now a person, whether a magistrate, or peace officer, who has the duty of suppressing a riot, is placed in a very difficult situation, for if, by his acts, he causes death, he is liable to be indicted for murder or manslaughter, and if he does not act, he is liable to an indictment on an information for neglect; he is, therefore, bound to hit the precise line of his duty.23 This call for a precision of force was to be repeated and used as a standard not only in the instances of other riots but also as the extant law in the infamous case of Governor Eyre and martial law in Jamaica.24 The military, in fact, fared no better than the magistrates, caught between protecting the state’s interest through the use of violence, on the one hand, and protecting the state’s legitimacy and legality by not using too much force, on the other. In 1812, Lord Mansfield ruled that the soldier during a moment of unrest was legally no different than an ordinary citizen, subject to no special exemption.25 The soldier was, however, subject to court-martial for disobeying orders. Nonetheless, it remained a tacit assumption in English law that an order if illegal was no defense later on. No one objected to this situation more vehemently than Sir Charles Napier, who insisted that it in effect left the soldier thinking “shall I be shot for forbearance by a Court-Martial, or hanged for over-zeal by a jury.”26 For Napier, part of the problem lay in the ease with which magistrates called out the army and then refused to let them take action. Somewhat excitedly, he suggested that the army only be called out when firing had become inevitable and not for a relatively minor unrest. “I would rather,” he declared in an interesting moment the significance of which will emerge later, “see a few mischevious men make a slight breach in the law . . . than myself break the law to pieces by firing on the people.”27 He charged the ministers with leaving things undefined so as to have an officer to “sacrifice” should circumstances require it.28 It had been hoped that Sir Robert Peel’s 1829 bill to establish a met-

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ropolitan police would eventually relieve the army from intervening in civil disorders. As the nineteenth century drew to a close, however, the army was called in to aid the civil authorities in Yorkshire in 1893, where riots in the coalfields “revealed that substantial disorders could still exhaust the resources of the police with alarming speed [and] that the dependence of the authorities on the army had diminished but had not disappeared.”29 Constitutional theory as a discourse was much slower to respond to these instances than the army, which speedily answered further “invitations” from the civil authorities in Belfast in 1907 and Dublin in 1914. Throughout these instances, the notion that the military had to “hit the precise line” between too little and too much force proved to be less than handy in the exigencies of the moment. A Parliamentary Select Committee was constituted after Belfast in 1908 in order to create some ground rules for future situations. Only then was it fully realized that in terms of legal theory, tabulating the conditions of emergency intervention was an even more anxious task. In an answer particularly telling for later discussions of martial law, Richard Haldane, the Liberal secretary of state for war, insisted that “the judges have laid down, over and over again, that a man is on the verge of two precipices, and has to get along, and he does get along.” When asked if it was possible to draw up specific regulations that would prevent the soldier from falling, Haldane replied, “If you do you will make the law go over the precipices.”30 It is this anxiety, this notion that a state of emergency not only requires a special law but threatens something fundamental about law in general that we must try to explicate. Even though there is a difference between a colonial martial law and responses to domestic unrest, as the former suspends the entire operation of ordinary law in a given territory while the latter still works within ordinary law (although it must be noted that even this difference was not agreed upon), the legal mode is quite similar.31 In both cases a state of necessity is the initial justification, a post facto indemnification is often the result, and an impossible demand for a precision of force regulates the authority. This is, of course, why judges attempting to determine an abuse of authority under a colonial martial law could turn to domestic cases following riots as a legal guide. But beyond these specific connections, the responses to domestic unrest and martial law show a commonality in their discursive revelation of the law’s ambivalent relation to vio-

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lence—both the specific act of violence and the general effect produced by it. Because a given act of violence contains no integral difference whether executed by those under legal authority or by those set against it, the law in resorting to violence, a material act of killing, produces an intensified need for the external signature of legality in order to distinguish the two. Indeed, it is this identity between the force within law and that without that produces a situation whereby the greater the need for an immediate use of force outside the ordinary protocols of legal procedure, the greater the need for that very regulative procedure. The effect of a generalized situation of violence thus becomes a threat not to this or that property or individual right but to the law itself. As Walter Benjamin once noted, the law’s fear of such violence is different from its fear of crime. Crime is a transgression against the law that may be checked by it. A more general unrest threatens not so much to transgress the law as to set up an alternative logic and authority to it.32 I will later return to this issue of generalized violence and emergency, but here should point out that such a perception is not limited to a more abstract level of theorizing. Here is Lord C. J. Tindal during the Bristol charge: Each individual breach of the law, tends to counteract and destroy this its primary use and object, yet do general risings and tumultuous meetings of the people in a more especial manner produce this effect, not only removing all security, both from the persons and property of men, but for the time putting down the law itself, and daring to usurp its place.33 Thus, in the British case martial law must not be seen as an issue only in colonial territories, nor as one that did not disturb the liberal arrangements of the metropole. While it is true that martial law was proclaimed only in colonial areas, its source remained the common law of England. And it is not entirely axiomatic that the jurisprudential reticence surrounding emergency had to do with the English social and political animus toward state power. In any case, recent scholarship has shown that that animus may have been seriously misunderstood by historians.34 While Charles Townshend, whose comprehensive work on civil emergency provides much of the historiography on the subject,

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is correct in noticing that “in Britain . . . unlike the German Notrecht, the claim of necessity has always had to struggle to be accepted,” he may be too hasty in ascribing the motive for that to resistance toward a large state.35 As John Brewer has argued, the hesitation over wide executive powers produced an ideology of legitimacy that in fact produced a “military-fiscal juggernaut” of a state. Additionally, the claim of necessity and the legal condition of emergency itself prove historically variable, and it is an attention to this variability that may loosen the unchanging postures of state. In the colonies martial law was frequently resorted to throughout the nineteenth century: Barbados in 1805 and 1816; Demerera in 1823; Jamaica in 1831–32 and 1865; Canada in 1837–38; Ceylon in 1817 and 1848; Cephalonia in 1848; Cape of Good Hope in 1834 and 1849–51; and the Island of St. Vincent in 1863.36 All of these instances, particularly those of Demerera in 1823, Ceylon in 1848, and Jamaica in 1865, produced debate, controversy, and an effort at justification. Thus we find no shortage of documentary material with which to answer our question of what is martial law. The approach by which such an answer may be achieved, however, is more problematic. As we have already noted with regard to domestic unrest, the logic of necessity is deeply embedded in the rhetorical structure of a liberal-constitutional system’s response to emergency. This axiomatic condition is so massive that to question martial law frontally, to ask directly why it is needed, is to produce tautologies. Martial law, after all, is the last resort when all order has broken down. Under the imminent threat of collapse and chaos, the normative structure of the constitution is obviously suspended. Indeed, this rhetorical armor is what has precisely precluded a proper critique of martial law, for its origins are always already as contingent as they are axiomatic. The English constitutional authority before Dicey, Henry Hallam, conceded as much and was quoted by Eyre’s supporters in the Jamaica case: “there may indeed be times of pressing danger, when the conservation of all demands the sacrifice of the legal rights of a few.”37 To discover the full significance of martial law, then, we have to follow through on the question asked of it in English constitutional theory itself: When is the moment of necessity? More useful for disclosing the ambivalent connections between law, violence, and the state, in short, for disclosing the constitutive conditions of legality itself, is to ask,

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Where does martial law come from? When does it become necessary, and what does it hope to achieve? We can clarify this question further by noting two separate but related issues that will map our inquiry. First, the legal issue relates to the introduction of martial law and involves the changing rules for defining “necessity,” the move between justifications by prerogative or statute, the relation between colonial legislatures and the imperial Parliament, and so on. Second, there is what may be called the cognitive-political issue, which involves general questions of the law’s relation to violence, and the object of martial law and its use of force. Indeed, the rhetorical structure of martial law begins to crumble the moment one asks for some exactness to the description of “pressing danger.” The category “necessity” is itself a temporal condition. That is, it must be represented as an interruption in the otherwise smooth functioning of lawful politics. Only its minute by minute narrative, its always so closely anticipated ending, can make legitimate the exercise of violence. Thus Lord Brougham during the Demerera debate in 1823 severely qualified the explanation of necessity: “It would be the worst of all conceivable grievances—it would be a calamity unspeakable—if the whole law and constitution of England were suspended one hour longer than the most imperious necessity demanded.”38 And Sir James Mackintosh, in that same debate, somewhat unwittingly revealed the ideological stakes involved in such a calamity: “if it survives the necessity on which alone it rests for a single minute, it becomes a mere exercise of lawless violence.”39 What keeps the line between very similar acts of violence intact here is a correct cognition of necessity. And it is the particular burden placed on this category of necessity that allows us to make a specific distinction between the domestic situation and the colonies. In those colonies where a social situation of racial difference existed, the legal definition of necessity would prove more varied and vexing. Here the ideological stakes in emergency would be more explicit. This was the singular lesson of the controversy over Governor Eyre and the events in Morant Bay, Jamaica, in 1865. The narrative of those events and their aftereffects in England is by now familiar and somewhat settled.40 We may briefly reconstruct the story, highlighting the legal issues. Prior to October 1865, the situation in Jamaica had been tense, with increasing disputes between blacks and whites over rent. The situation

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was at least partly exacerbated by the revolutionary promptings of Paul Bogle, a black landowner in St. Thomas in the east, and George William Gordon, a prominent mulatto, and a member of the Jamaica House of Assembly. On 12 October a protest outside the courthouse in Morant Bay turned violent, and a number of people were killed. Governor Eyre, himself suspicious of black intentions, and responding to white fears of a black conspiracy to expel all whites from the island, summoned the Council of War to declare martial law.41 By the provisions of a recent local act (9 Vict., c. 35), martial law could only be declared “by the opinion and advice of a Council of War, as aforesaid; and at the end of thirty days from the time of such Martial Law being declared, it shall ipso facto determine.”42 The governor together with the Council of War proclaimed martial law on 13 October for all of the county of Surrey except Kingston. Martial law remained in force for its full statutory limit, and the reprisals against the resisters seem to have been extremely violent: even by the official account of the Royal Commission appointed to investigate in January 1866, 439 people were put to death, either by being shot on the spot or hanged after court-martial, 600 men and women were publicly flogged, and over 1,000 cottages were burned down.43 As news of these punishments started reaching London, an immense controversy erupted. In December 1865, the Jamaica Committee was formed by a number of prominent public figures, including John Stuart Mill, Charles Buxton, John Bright, Charles Darwin, and Thomas Huxley, in order to pressure the government to inquire into the reports. Ultimately, however, the committee focused its efforts not on the general incidents of troop atrocities, but on the specific issue of the execution of Gordon. In a meeting of the committee in July 1866, John Stuart Mill declared that “the objects of this committee are simply to ascertain whether there exists in this country any means for making a British functionary responsible for blood unlawfully shed, and whether that be murder or not.”44 In response, by August 1866 an Eyre Defense Committee was formed, with Carlyle, Ruskin, Dickens, and Tennyson among others as members. The legality of the proceedings against Gordon, even by the looser standards of emergency rule, certainly seems to have been suspect. While Gordon had been responsible for a number of inflammatory statements prior to the outbreak, he was not in Morant Bay when the

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violence started but was staying in Kingston, a town exempted from the jurisdiction of martial law. Eyre, however, arrested Gordon on 17 October and brought him over to Morant Bay for a trial under a military tribunal. Accordingly, on 21 October, Brigadier Nelson put together a tribunal of some very junior officers with Lieutenant Brand as its president, and the tribunal found Gordon guilty and sentenced him to death.45 The proceeding, however, violated a number of basic judicial rules. Nelson had put together two charges against Gordon on the basis of some documents and affidavits: high treason and complicity with certain rebels. Capital punishment for an action in which there was no direct involvement, and based on circumstantial evidence at best, may have been excessive. Even more problematic was the fact that Gordon was forcibly brought into the jurisdiction of martial law. On the morning of 23 October, however, Gordon was executed. Such an outcome was a substantial circumvention of a procedural legality. More important, it could not even be squared with an English doctrine of necessity. Gordon was not an insurgent, imminently involved in violence against the state at the moment of his execution. The justification for martial law that rested on the assertion that rebels essentially became soldiers and thus forfeited the claim to a civil legal response thus could not immediately be applied in this case. Even Geoffrey Dutton, in his pro-Eyre account, is forced to concede that Gordon was “morally guilty and legally innocent.”46 What would then be needed, as I indicated earlier, was an altogether different conceptualization of necessity, one that highlighted the social situation of a colony with a racially distinct conquering class. Such a conceptualization, however, was not without ideological consequences. Specifically, it would create a split between the legal identity of the metropole and the colony. As we have already seen, English colonialism had long recognized that it could not bring English law wholesale to the colonies, that it would have to recognize cultural and social differences. It had, however, hoped to resolve these differences by positing an essential legal identity between metropole and colony at the constitutional level, particularly through the assertion of a single form of procedure and guarantee. Emergency, however, made sociological differences intervene in this legal-constitutional identity. We can explicate this argument by reading the trials in England that followed the incident of martial law in Jamaica. Two separate efforts

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were made to indict those involved in the Gordon case in front of a grand jury, both of which were unsuccessful: the first against Brigadier Nelson and the president of the court-martial that tried Gordon, Lieutenant Brand, in 1867; and the second against Eyre himself in 1868. In both cases the judges—Lord C. J. Cockburn in the case against Nelson and Brand, and Justice Blackburn in the Eyre case—had to determine the law as it applied to the issue of martial law in order to give instructions to the jury, which led to a rare and public disagreement between two of England’s most prominent jurists. Regina vs. Nelson and Brand came up before Sir Alexander Cockburn, Lord Chief Justice, at the Old Bailey in 1867.47 Cockburn, who took more than six hours to persuade the jury to find a bill against the two, rejected the argument that martial law meant no more than the will of its administrators responding to necessity. No such force, he argued, resided in any servant of the Crown since the Petition of Right, and such force was deeply inimical to all declared law. Cockburn began his charge by reiterating the circumstances of the outbreak of violence. These, he suggested, warranted emergency action. What was unwarranted, according to him, was the prolonged continuation of martial law, when in fact the rebellion had immediately collapsed upon the arrival of troops. Since Jamaica was a settled and not a conquered colony, which meant that English common law had been brought to it by the settlers, the standard of emergency would have to be that of English common law: the only authorized force, thus, would be against insurgents in the act of imminent violence. The continuation of martial law and the execution of Gordon after such violence had been suppressed would, according to Cockburn, presumably be illegal. For Finlason, a contemporary jurist, absolutely prolific in his coverage of the Jamaica case and in his support for Eyre,48 the charge of the Lord Chief Justice entirely missed the crucial racial dimension of the situation. The fact that the ratio of the black population to the whites was 450,000 to 13,000, and that the whites feared a planned conspiracy to expel or kill them, meant for Finlason that the response to the rebellion had to look beyond the imminent violence.49 The Lord Chief Justice had, according to Finlason, made the mistake “that he looked only to the outbreak, and forgot the rebellion of which it was the outbreak. In other words, he was thinking of a riot or a casual revolt.”50 This is an interesting twist on the connection we have already noted between the

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legal understanding of responses to domestic riots and colonial martial law. Finlason’s argument consists of denying that connection, of insisting that a common law understanding of necessity could not be stretched to cover the actual necessity of a colonial emergency. And at each step of his argument, it is race that undermines the legal identity between metropole and colony. The English common law as it existed in Jamaica, according to Finlason, was meant for English-born subjects and their descendents and not for Africans. Sir Alexander Cockburn had thus “fallen into” the fallacy of the counsel for the prosecution, in presuming “that because the common law was carried to Jamaica by the English settlers as their birthright, therefore it precluded martial law against the Africans, except when allowed by the common law here.”51 For Finlason, what had resulted in Jamaica was not the common law version of emergency at all, but a true martial law responding to a different standard of necessity.52 To object to a deterrent measure, such as the summary execution of Gordon, beyond the incidence of immediate violence, was to presume “not only legal, but actual and social identity between this country and the colony.”53 Finlason’s criticism of the chief justice’s charge ends then with an explanation of dizzying circularity: He utterly failed to realise the danger of the rebellion, and therefore he of course failed to recognise the necessity for deterrent measures, of which the necessity could only be recognised by realising the danger, and without realising which severities would easily appear to have been cruelties.54 Martial law appears here as a deeply cognitive problem. We can now recognize the anxiety over the slippage between the same act of violence as it can appear within the authority of the law and opposed to it, so that an excessive cruelty can easily be mistaken for a warranted severity. Necessity is the legal category of a correct cognition—nothing new there—but what Finlason discloses with a startling simplicity is that, unlike some other legal rules, necessity cannot avoid the explicit recognition of the sociological, and in this case of the racial. What Finlason discloses, in other words, is the fact that the authority for martial law would have to be found not in the self-regulating discourses of legality but in the unspoken and violent origin of the state.

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For colonial ideology, however, to concede to Finlason’s assertion would be to posit a separate legal standard for segments of the population that were, after all, “Her Majesty’s Subjects.” To insist, as Finlason had done, that the English common law standard of necessity was only applicable to English subjects and their descendents, but not to Africans, was to raise the logical extension of that assertion: that martial law of the Jamaican variety could be applied to Ireland. This connection was not lost on Irish liberals in Parliament, whose objection to it even Finlason had to notice: As an Irishman, he [Major O’Reilly] said the subject had a vital and thrilling interest. It touched him and his countrymen more than it touched England and Englishmen. To them it was a vague tradition of the past; but to Irishmen, almost within the memory of living men, it had been a bloody and cruel reality, and even within his lifetime it had been clamoured for by those who ought to have known better.55 Like the earlier questions of an absolute sovereignty for the colonies, martial law could not be exclusively situated in the colonial realm; its ideological consequences would inevitably return to Britain itself. The juries refused to find a “true bill” in both proceedings. For John Stuart Mill, “it was clear that to bring English functionaries to the bar of a criminal court for abuses of power committed against Negroes and mulattoes was not a popular proceeding with the English middle classes.”56 In other words, to the philosopher of liberalism, the racialism that a colonial emergency made explicit equally barred an effective check on the authority of the state. Carlyle’s critique, on the other hand, focused on the necessarily violent underpinnings of even a liberal state. In Regina v. Nelson and Brand, Sir Alexander Cockburn had taken six hours to read his charge to the jury. When the grand jury, however, refused to indict, Carlyle took it upon himself to explain why: Nobody answers this remarkable Lord Chief Justice, “Lordship, if you were to speak for six hundred years, instead of six hours, you would only prove the more to us that, unwritten if you will, but real and fundamental, anterior to all laws and first making written laws possible, there must have been, and is, and will be, coeval with

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Human Society, from its beginnings to its ultimate end, an actual Martial Law, of more validity than any other law whatsoever. Lordship, if there is no written law that three and three shall be six, do you wonder at the Statute Book for that omission.”57 Even as he dismisses them under the inexorable logic of an original sovereign might, Carlyle neatly catches the enduring concerns of jurisprudence: the origin of legal authority and lawfulness, and the related question of the cognitive conditions for distinguishing lawful violence, distinguishing, following Kelsen, “between the state and a gang of racketeers.”58 It is this concern that animates both modern jurisprudential analysis and the more important constitutional cases in the former British Empire. For Carlyle, the justification for martial law must be sought in the unspoken and violent origin of the state. In the case of the colonies, however, where this origin is both more sudden and more specific, the ideological disclosures forced by martial law are more dramatic. The Eyre case then is a crucial moment in the story of how the category of martial law changes through its experiences in the colonies—as a moment in the gradual enlargement of the temporal structure of martial law, of what is permissible and for how long. It was more or less settled after the events in Jamaica that the fear of conspiracies against the state was more real in the colonies than at home, and martial law as such could be kept in force beyond the immediate acts of violence that provoked it in the first place. This, however, still did not mean that the authority for martial law could be legislated in advance. Despite Justice Blackburn’s legal opinion emphasizing the right of a colonial legislature to statutorily permit martial law, the entire tenor of both English law and political policy continued to be one of discouraging the stipulation of an emergency condition in advance, of insisting on a case-bycase basis. This was the declared policy of the Colonial Office in a circular sent to all colonial governors soon after the Eyre case. An enactment which purports to invest the Executive Government with a permanent power of suspending the ordinary law of the colony, of removing the known safeguards of life and property, and of legalizing in advance such measures as may be deemed con-

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ducive to the establishment of order by the military officer charged with the suppression of disturbances, is, I need hardly say, entirely at variance with the spirit of English law.59 Notice how in such a formulation the colonial enactment is in conflict not with the substance of English law, which may or may not apply to the colony, but with an English constitutional understanding of legality, which is always to be applicable to the colony. Such a “spirit” of the law would, of course, mean that the Jamaica statute recognized by Justice Blackburn would have to be ultra vires. The circular posits the legitimacy of the empire in terms of a legality, and it posits that legality in terms of the legal identity between metropole and colony. It instructs all colonies to submit to their local legislatures “an Act repealing so much of the law as authorizes the proclamation of martial law.”60 This is not to be construed, the circular goes on to explain, as a prohibition against martial law, but only as a directive that the governor cannot “be relieved from the obligation of deciding for himself.”61 If that decision involved continuing martial law beyond the incidence of an imminent violence, a post facto act of indemnity, taking into account the exigencies of a colonial situation, could be successfully resorted to. Thus the Jamaica case emphasized the need for tying a decision of emergency to the necessity of the moment, even as it gave greater latitude to the definition of that emergency. Within English constitutional debates, however, the initial condition that could justify martial law was also historically variable. For a long time, it was taken as settled doctrine that the operative rule was whether the civil courts could actually, physically sit and convene. Only their inability to do so was to be taken as a condition of war.62 In 1902, during the Boer War, however, the Judicial Committee of the Privy Council considered the question in Marais v. General Officer Commanding; Ex Parte D.F. Marais and found that because the theater of war had so extended itself and the conditions of emergency had become so diverse, this rule could no longer be upheld.63 The Lord Chancellor stated the court’s position: “The fact that for some purposes some tribunals had been permitted to pursue their ordinary course is not conclusive that war was not raging.”64 Once martial law had been declared, the court stated, military decisions were not justiciable by the ordinary courts. In addition, here we once again find an effort to disso-

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ciate the emergency conditions in the colonies from instances of domestic unrest. Thus, the court found that it might be the case with a “mere riot” that the decision of military intervention was unduly severe and questionable on those grounds. This, however, did not preclude the permissibility of martial law “once let the fact of actual war be established.”65 But by removing the inability of ordinary courts to function as a necessary precondition, the Privy Council gave more latitude to the establishment of the “fact” of war. The case of Marais, then, continues a tendency in English law from the mid–nineteenth century onward to widen the scope of the condition of necessity. The Marais decision generated some criticism and led to a series of articles in the Law Quarterly Review. In placing the decision within a more general and historical context, the various authors were able to isolate some of the persistent themes constitutive of martial law. For Frederick Pollock, martial law could not be dissociated from the constitutional rules of the English common law, and he doubted whether there was “any jurisdiction under the British flag where these rules are not assumed to have become part of the local law.”66 This meant that the final authority to decide whether there had been an excess of duty during martial law would have to reside in the civil courts, once they were able to function again. For Earle Richards, however, although such a proposition may be the desired form of legal functioning, the logic of the Marais ruling seemed to suggest the opposite: that once martial law had been declared, the power of the civil courts to intervene was entirely superseded. Indeed, if it once be admitted that the courts have no power to interfere at the time, it seems to us to follow that the right is gone altogether. To suspend the law in such circumstances is in general to annul it altogether. To refuse to interfere at any rate in the case of a prisoner condemned to death is not suspension of law but abrogation; it is not a postponement of justice but a denial of the only remedy.67 The Marais ruling thus significantly increased the scope of power available to martial law. It also, in a move that Earle Richards approved of, dispensed with the “artificial rule” that functioning courts precluded a conclusion that war existed. For Earle Richards, “war is self-evident, and the fact that the courts may continue to sit cannot prevent the exis-

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tence of war.”68 Reading the case, however, it would seem that war is anything but self-evident. From the Petition of Right onward, the purpose of this so-called artificial rule was to prohibit an “expectancy of danger” as a condition of emergency itself. The Marais ruling increased the latitude for deciding on a condition of emergency, by allowing such an expectancy of danger as a condition of emergency itself. It is reasonably safe to conclude then that the English law of emergency as it met the condition of the colonies became less rather than more narrow. This movement was to create one of the conditions for the possibility of a disaster such as the Amritsar massacre in 1919. One of the more exemplary cases of colonial martial law, it is to that situation in the Punjab, India, in 1919, that we now turn. In doing so, we move chronologically forward from the nineteenth century into the twentieth century. But we must also now move analytically forward, from examining the source of martial law and the moment of its introduction to the question of the proper object of martial law. What is it exactly, we must ask, that martial law hopes to accomplish? On the face of it, the answer to such a question seems obvious: martial law is the ultimate force needed to restore a situation of law and order. However, just as the condition of necessity that justifies the introduction of martial law turns out to be anything but straightforward, so the object of martial law turns out to be a problematic question, and one that reveals the contradictions inherent in ordinary law and state power itself. Emergency and Law’s Violence: The Amritsar Massacre So far, I have argued in terms of a corrective logic. That is, I have tried to argue against the self-evident and unchanging postures of emergency by showing the historical malleability of martial law, its temporal expansions, its changing cognitive conditions, in order that we may be in a better position to evaluate the rules that apply in emergency. But now, I would like to shift the register of analysis and turn from a corrective answer to what I consider a foundational question. So I shall try once more to answer the question of what martial law is by focusing on what it does. Let me say outright that the questions of punishment and order, while they may form a part, are not the whole of the answer here. We must not too readily presume the effectiveness of martial law as remedy to an ordinary lawlessness. Reading the documentation of

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martial law, it is striking that martial law in its operations as the replacement of civil authority is not as efficient as one would presume. Power may transfer from the lengthy procedures of civil adjudication to military tribunals, but repeatedly we encounter the picture Charles Townshend has drawn of officers struggling with Banning’s Military Law Made Easy. What martial law does, and does terribly well, becomes clear only if we nuance the catchall phrase “law and order,” distinguishing issues of force and order from issues of authority. It is the reconstitution of the general authority of the state that martial law performs, and while this involves the exercise of violence, it is a specific form of violence. If we are to explicate the function of violence in martial law, to explicate its extreme condition, we shall have to reemphasize the limit condition to which it responds—the inscription of racial difference. The presence of race must here be more than an acknowledgment of a racial animus that would putatively explain the vigor and venom of much of the rhetoric. Rather, we must once again view race as the limit condition within the articulation of both the liberal conditions of rule and of positivist legality. There is perhaps no other text in the liberal canon where the racial differentiation of subjects and the criteria of forms of rule are woven together more tightly and with more clarity than John Stuart Mill’s Considerations on Representative Government.69 The embryonic ideas of this text, as Homi Bhabha reminds us, were first formulated in precisely the context of debate on morality and education: in response to Lord Macaulay’s infamous 1835 Minute on Indian Education, with its clarion call for the creation of “a class of persons Indian in blood and colour, but English in tastes, in opinions, in morals and in intellect.”70 Faced with the task of convincing the reader of the ideality of the specific form of representative government, distinguished in degree and kind from despotism on the one hand and direct democracy on the other, Mill must specify the optimum conditions in which such a form may successfully operate. It is clearly not suitable to all: “a rude people, though in some degree alive to the benefit of civilized society, may be unable to practice the forbearances which it demands . . . in such a case, a civilized government, to be really advantageous to them, will require to be in a considerable degree despotic.”71 The virtues of order and obedience are what colonial government has to offer to the natives, but Mill

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insists that “there are different degrees of obedience,” and the most desirable form is obedience of a general order, of “mandates issued in the deliberate form of laws.”72 After all, Mill asks us, what is it that distinguishes a slave from a savage, making the former preferable in the evolutionary scheme of ordered government? The answer is a developmental scale of modes of obedience: the slave is in advance of a savage, for “he has learnt to obey. But what he obeys is only a direct command. It is characteristic of born slaves to be incapable of conforming their conduct to a rule or law.”73 This story of the stages of civilization and of the corresponding, progressive scale of juridical subjects is reasonably well known, and we need not dwell on it much longer. But what is more important to those interested in reading the reflections and refractions of modern law through the prism of colonial discourse is the way in which the distinction that organizes Mill’s scale—the distinction between types of force, and the distinction between command and rules—is also the initial and animating condition of much positivist jurisprudence. We shall now turn to that theory and to the work of H. L. A. Hart in particular before returning to India. Hart’s theory is cast in the form of a historical Bildung: a primitive society may have law to the extent that it contains primary rules of obligation, but it cannot be considered a mature legal system until it has a secondary set of rules—rules directed not to the general populace but to officials who determine, declare, and enforce the law. Indeed, as Hart tells it, the mode of obedience (whether subjects obey the law out of a sense of fear or social conformity or moral bearing) becomes less important than the development of an official legal establishment: “The history of law does, however, suggest that the lack of official agencies to determine authoritatively the fact of violation of rules is a much more serious defect.”74 In fact, by the end of Hart’s story, the definition of law does entail more than notions of command and obedience, if only because it has jettisoned the concern over why people obey the law, content with the fact that they just do, and has more vested in how officials determine with certainty the validity of a rule and its potential violation. I am, however, going to dwell on the original problem that Hart began with: the distinction between rules and commands, and the relation between obedience and authority. Certainly, Hart is successful in

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trying to diffuse the force of law, to insist that the effect of rules upon the naked power of the gunman is not so much a masking as it is mediation. Indeed, in its attempt to decenter the simple act of force associated with the gunman, by introducing secondary rules that stipulate who gets to make the law in the first place—“persons qualified in certain ways to legislate by complying with a certain procedure”75— Hart’s text is saturated with tropes of immediacy versus mediate force, face-to-face commands versus general declarations. The maturation of a legal system, in Hart’s Bildung, builds in distance between the source and object of violence. It is precisely such distance that Stanley Fish calls our attention to in his reading of The Concept of Law. “Notice how much distance there is,” Fish points out, “between the source of power and the object of its exercise. In the gunman scenario the coercion is direct and discrete; in the world of rule the coercing agent stands at the end of a long and articulated chain, beginning with the rule itself, which mandates not an act but a procedure.”76 Legal control, Hart argues, could not be implemented through a system dependent on face-to-face commands, if only for logistical reasons: “no society,” Hart correctly points out, “could support the number of officials necessary to secure that every member of the society was officially and separately informed of every act which he was required to do.” But what follows such a declaration is a curious sentence, seemingly commonsensical and cursory, but one that requires some further elaboration. “Instead such particularized forms of control,” Hart continues, “are either exceptional or are ancillary accompaniments or reinforcements of general forms of directions.”77 Now what remains somewhat obscure is both the substantive content of these particularized moments and their relation, whether directly causal or otherwise, to the smooth functioning of a generalized legality. We could accept that such particular moments refer to the face-to-face orders of a policeman, addressed to motorist or vagrant (examples that Hart himself offers), or even the performative speech of a judge faced with a defendant. It would, however, be curious to identify Hart’s particularized forms with these mundane encounters, if only because such examples do not so much represent a “reinforcement” of the law as they do its enforcement in the first instance. All law, after all, has to be enforced on bodies—protocols of interpretation, procedures of institutions, require the body, require its constraint and movement, signature and utterance.

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Certainly, given the tenor of some analysis of legal interpretation, it is necessary to be reminded of law’s essential dealing with force—with its ability and desire to enforce—and it is precisely such a necessity and such a reminder that give the opening sentence of Robert Cover’s now famous essay “Violence and the Word” its puncturing effect: “Legal interpretation takes place in a field of pain and death.”78 But surely for Hart’s purposes, and indeed ours, a reminder that violence is imbricated in law at every level cannot be sufficient. After all, might there not be another mode of violence, one that not only enforces a prior sanction but also, and this is Hart’s vocabulary, relates particularized instances to generalized forms? What would such an establishing violence look like? Readers familiar with Walter Benjamin’s essay “Critique of Violence” will have already noticed in my vocabulary of enforcing and establishing violence an echo of the crucial distinction between “law-preserving” and “law-founding” violence that structures Benjamin’s essay.79 “Zur Kritik der Gewalt”—the original title is important here, as it points to the evaluative and demarcational project of Kritik, and to the double meaning of sanctioned force and violence that make up the German Gewalt—was first published in 1921. One of Benjamin’s more dense and difficult essays, “The Critique of Violence” combines Benjamin’s terse, aphoristic style with his Marxism and messianic sensibility. The essay begins with a series of rigorous distinctions between positive and natural law, means and ends, only to abruptly catapult us into the apocalyptic arrival of a final and divine violence that will expiate the “rotten” and “bloody” violence of lawmaking. This final condition, by which, as Peter Demetz points out, “the essay subverts its own fundaments in order to enact something of the ontological ‘break’ in which the old world is suddenly transformed into a new,” adds to the difficulty of assimilating Benjamin’s insights.80 Indeed, “The Critique of Violence” offers us no totalizing theory of violence, but at the level of aphoristic suggestion it is invaluable. Earlier I emphasized the tropes of distance and proximity, means and mediation, which occupy Hart’s text, and it is now significant to note that a topology of means and ends also animates and frustrates Benjamin’s effort. Indeed, Benjamin’s essay begins with an awareness of the fact that the circular justifications of ends and means in natural and positive law threaten to eclipse the object of critique: “natural law

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attempts, by the justness of the ends, to ‘justify’ the means, positive law to ‘guarantee’ the justness of the ends through the justification of means.”81 The escape from such casuistry comes with Benjamin’s decision to focus on positive law because its effort to render violence legitimate is also to render it historical. That is to say, positive law focuses primarily on the quality of means, on their origin and authority, precisely by drawing a distinction between sanctioned and unsanctioned force (authorization), which for Benjamin is done by asking of all violence the “proof of its historical origin.” “The Critique of Violence” employs the German mittel which can be translated variously as means, mediate, and mediation. Benjamin plays with the word and its derivatives, such as unmittelbare (unmediated but also immediate), reine unmittelbare (purely unmediated), and eine nicht mittelbare (non mediate), in order to designate the modalities of violence within positive law.82 The modes of violence are represented in the essay as a dyad: violence, Benjamin insists, is either “law-preserving” or “law-founding.” Violence that preserves that law is a mediated mode, in that its immanent application is mediated through and by a prior rule that dictates the form and content of the instance and that crucially makes such a violence “subject to the restriction that it may not set itself new ends.”83 This is distinct for Benjamin from that other form of violence, which seems to dispense with the question of ends as a prior stipulation altogether. Thus the archetype of law-founding violence is “mythical violence”—the representation of the anger of the gods in mythology—and its exemplary story, for Benjamin, is the legend of Niobe. Apollo and Artemis’s reaction to Niobe’s arrogance, sparing the life of the mother but in a whimsy of fate subjecting her children to a cruel death, could perhaps be read on some level as a punishment, but if so it is a strange punishment, neither particularly rehabilatory nor retributive in its effect. Rather, Benjamin notes, “mythical violence in its archetypal form is a mere manifestation of the gods. Not a means to their ends, scarcely a manifestation of their will, but first of all a manifestation of their existence.”84 It is these moments of law-founding violence that Benjamin locates in the modalities of positive law. Foundational is perhaps a misleading description, to the extent that it suggests the singular instance of an origin. Benjamin certainly wants to retain some sense of the ideological labor performed by the notions of origin and foundation, but also

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wants to locate such moments in their episodic (perhaps even atavistic) repetition. Thus when he turns to the agency of enforcement—the modern police—the rigor of the distinction gives way, not so much to a blurring as to a “spectral mixture.” The police in their discretion necessarily mix the right of disposition (to enforce a prior sanction) with right of decree (to insist on the instance of a need for a sanction). Thus Derrida notes that “what threatens the rigor of the distinction between the two types of violence is at bottom the paradox of iterability. Iterability requires the origin to repeat itself originarily.”85 It is, however, this very paradox—this understanding of a certain kind of legal violence as the episodic repetition of the origin, or analogous to Hart’s vocabulary, as the particular and episodic reinforcement of the general form, which constitutes one of Benjamin’s essay’s more profound insights. We may return then, with Benjamin’s insights, to the question of emergency and martial law in general, and the situation in Amritsar in particular. Here, two related questions highlight the disjunction between rules and violence. First, what is it that the law permits emergency measures to accomplish—what were the rules that governed its special use of force? Second, what was perceived as the need for martial law in the spring of 1919 in the Punjab? Let us recall and consider with a seriousness, a deadly earnest if you will, Carlyle’s insistence on the priority of martial law—“real and fundamental, anterior to all laws and first making written laws possible”—and we must not miss the double sense of priority here, in terms of an importance and a temporal originality. Martial law seeks to effect not just the restoration of order but the restoration of the general authority of the state. In doing so, it takes advantage of the absence of normative constraints on power not just to punish more—which it may or may not do—but to punish out of a different logic. This punishment, if we can even call it that, is not caused by questions of innocence or guilt or a specific transgression of the law, nor is it particularly rehabilitory or retributive in its effect. Rather, it is a purely nonmediate form, purely performative, the purpose of which is the sheer manifestation of power itself. It is the form of violence that Walter Benjamin called “mythical violence.”86 It is in this sense, perhaps, that martial law “saves” the state, by re-creating the conditions for the possibility of its existence. Specifically how it does so will become clearer as we return to the example of martial law in colonial India.

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The Indian Minority Report had strongly disagreed with Dyer’s remarks. To them such an explanation echoed “Prussian tactics,” not unlike those used by German military commanders in Belgium and France.87 They saw General Dyer’s “moral effect” as “terror” and explained its source thus. People like General Dyer have the fixed idea that the effective way of governing India is force. It is the same idea that General DrakeBrockman of Delhi gave expression to in his written statement at Delhi: “Force is the only thing an Asiatic has any respect for.”88 On the other hand, General Dyer was to protest against these charges by pointing out that force was, in fact, required, and that the Majority Committee was placing soldiers in an impossible situation: “if they consider only the immediate needs of the moment, they are liable to be condemned for not looking further ahead . . . if they consider the situation as a whole . . . they are liable to be told that they must not look beyond the dispersal of the crowd.”89 Indeed, the British government and the secretary of state for India, Edwin Montagu, while agreeing with the committee that Dyer had a mistaken conception of duty, did recognize the problem for the military to which Dyer referred. Accordingly, it ordered the Indian government to prepare a martial law manual for future use.90 I list these responses here in order to emphasize how little has changed from the earlier instances of military intervention. For an event that was supposedly singular, the Amritsar massacre prompted rhetorical responses that were considerably timeworn. General Dyer’s protest against the difficult position the military were placed in during moments of civil unrest may as well have been taken from Sir Charles Napier and the debate following the Bristol riots and Rex v. Pinney.91 On the other side, the Minority Report’s statement that General Dyer’s mentality was of the sort that believed that a rule of force was appropriate to India only meant that he belonged in a long tradition of British ideology that advocated a paternalist despotism as the best mode of British governance of India. The Amritsar massacre and, indeed, martial law in the Punjab are best understood, then, as the culmination of several intensely ambiguous discourses, some specific to an English political imagination’s

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negotiation between the military, state power, and a rule of law, others the result of that negotiation in a regime of conquest. It is thus not surprising that the official British response to the massacre focuses not on the number of people who were killed or their particular guilt or innocence, but the reasons for their death. That is, it focuses not so much on the substance of Dyer’s actions, but the logic with which they are explained. Everywhere in these official documents one finds confused answers to a question, sometimes tacit, sometimes explicitly asked: What is the proper object of martial law? It is answered by placing the massacre and martial law in the Punjab itself in its wider political context. Discussions over the object of martial law are linked to questions of the causes for the unrest, that is, to the reasons why martial law may have been needed in the first place. Although social and economic conditions in the Punjab, following World War I, contributed to the “disturbances” there—notably the influenza epidemic of 1918–19, high inflation of basic goods prices, and aggressive troop conscription in the countryside92—the immediate catalyst for the agitation and subsequent declaration of martial law was, ironically enough, an emergency law. On 18 March 1919, the imperial council placed on the statute book the Emergency Powers Bill, or the so-called Rowlatt Act, after Justice Sydney A. T. Rowlatt, the main author of the Report of the Committee appointed to investigate Revolutionary Conspiracies in India.93 The committee had painted a picture of elaborate conspiracies in India and had recommended the continuation of some wartime measures, including the suspension of certain civil liberties. The Rowlatt Act was passed against the express urging of nationalist leaders, who saw it as a betrayal of promises made by the British during the war to extend Indian political participation. To that extent, it was seen as mitigating the effect of the already meager political changes of the Montagu-Chelmsford Reforms.94 Gandhi denounced the act and called for a civil disobedience movement to protest it on 7 April 1919. Two days later Gandhi was forbidden to enter the Punjab and was arrested attempting to do so. By 10 April, the arrests of Drs. Satyapal and Kitchlew in Amritsar had provoked further unrest. The agitation against the Rowlatt Act, particularly Gandhi’s Satyagraha, is given a causal force in the Hunter Committee’s inquiry after the fact. On the one hand, “rumors” are blamed for producing a general

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misunderstanding of the scope of the act, portraying it as increasing executive interference in daily life.95 On the other hand, the civil disobedience movement is expressly criticized, not for its opposition to the act, but for asking people to disobey the laws of the act. In India’s particular state of political development, we are told, to permit disobedience to one law is to invite a more general and complete disobedience to all law.96 This was equally Lord Chelmsford’s explanation for the situation in 1919. In a letter from the government of India to the secretary of state in London, he hoped that politicians would from now on refrain from “invoking forces which they can neither direct nor control.” He went on to explain why: when this movement (Civil Disobedience) was initiated, it was apparently not obvious to its promoters, as it was to all thoughtful persons, that in India in its present state of development (whatever may be the case in other countries) the unsettling effect of the advice to the public in general to break selected laws was likely to lead to a situation which might involve the overthrow of all law and order.97 Lord Chelmsford’s understanding of the effects of civil disobedience in India is curious but significant. A developmental scale of judicial subjects is set up here, whereby more developed (read civilized) subjects are able to distinguish between specific laws, which may appear to them to be wrong for some reason, and the general authority of the state that subtends those laws. Thus, they are able to selectively “disobey” a specific law without threatening the overall authority of the state. In India, however, where the subjects are presumably unable to appreciate what John Malcolm nearly a century before had called “the more artificial systems of jurisprudence,”98 no such cognitive distinction is possible. Here, Lord Chelmsford suggests, echoing once again a thematic of despotism, every law is a personal and direct manifestation of the sovereign. To call for even the nonviolent disobedience of the Rowlatt Act is to unleash a more general “disturbance” that threatens the authority of the state. Thus, the real need for martial law is not merely to put down this or that outbreak of violence but to restore this authority. Although Lord Chelmsford is at pains to confine such a dynamic to countries lower on his developmental scale, it is not that different from

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the understanding we encountered earlier of the effects of violent riots in England. There, we may recall, the fear was that such violence did more than disobey a single law, that it set up a logic parallel to the law itself, daring, as C. J. Tindal put it, “to usurp its place.”99 The understanding of the conditions that require martial law in the Punjab, then, is an intensification of such a dynamic. What is required of martial law is a corrective to this “unsettling effect,” as Lord Chelmsford calls it— perhaps in the form of the “moral effect” that General Dyer stated to be his proper object and aim. Once one explicates the state’s understanding of this “real” need for martial law, the logic of its violent actions becomes clearer: not the punishment of the guilty, not the end to specific transgressions, but the restoration of a general condition. Moreover, it is crucial to once again remind ourselves that this general condition cannot be reduced to notions of public peace and order. In fact, in each explanation for an action by an officer, there is a will to generality—an order whose obedience will itself teach the subject about general rules. As I indicated at the beginning of this chapter, both General Dyer’s explanation for his actions and the official response to his explanation are saturated with this ambivalence about specific tasks and general ends. In General Dyer’s statement we get an uncanny reflection of the relation between performative violence and a return to legality, and the distinction between such violence and mere mechanical notions of force and the preservation of order. The schism between the immediacy of violence and the putative object of its accomplishment saturates the dialogue of criticism and defense of Dyer’s actions, making it into an uncanny reflection of the relation between a performative violence and a return to what Hart would call “legal control”—a reflection of the gap between the mechanics of force and the preservation of order. As I mentioned at the start of this chapter, the Parliamentary Inquiry into Dyer’s actions would concede that the firing was crucial to the “stability” of the entire Punjab region, but could not allow itself to concede that such “excessive force” was “justified because of the effect such firing may have upon people in other places.” General Dyer’s statement in his own defense, in fact, rather astutely picks up on this aphasic moment. Dyer insists that for the firing to be considered excessive, one would first have to agree on its putative object, in order to determine what it is in excess of—“if I

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was not confined to the bare mechanical operation of getting the crowd ‘to move on’ then no evidence or ground is anywhere suggested to show that the force I used was in the least degree excessive.” Dyer’s argument is that his actions can only be understood as excessive if they are contained within a closed economy of transgression and punishment, disturbance and the restoration of order. But Dyer insists that his object was not specific—rather it was a specific action taken to establish rather than merely enforce a general rule. This is then General Dyer’s “moral effect throughout the Punjab,” but it is a mode not confined to him alone. Throughout the inquiry report one finds instances of official actions that seem to move away from specific objects to the more general object of revealing the power of the state. The actions of Lieutenant Colonel Johnson in Lahore demonstrate this desire to reveal the power of the state. After government proclamations posted on the walls of the Santan Dharm College were found defaced, Lieutenant Colonel Johnson made the students and professors march in the hot sun through the city and then interned them for more than three hours in the Red Fort. When pressed by the Minority Committee’s investigation, Johnson admitted that there was no evidence to suggest that any of these people had been directly responsible for the defacement of the posters. In fact, detection and punishment of the guilty was not the object. Rather, Johnson admitted that he was “longing for an opportunity to show them the power of martial law.”100 Indeed, this remark is an uncannily accurate example of Benjamin’s notion of mythical violence—of a violence that is not so much about means and ends as it is about the manifestation of power. What the power of martial law is used for becomes apparent from some of the other incidents that the committee investigates. In Kasur, the committee found that Captain Doveton had resorted to “fancy punishments,” designed in order to counter the effect of people chanting “Hukum kya chiz hai, hum koi hukum nahin jante—what is an order; we know of no such thing as an order.”101 The punishments then were only meant to reinforce the general notion of the command itself. Indeed, this logic can become increasingly general, as is evidenced by the committee’s findings in Gujranwala. There the local commander issued the infamous “salaaming [greeting] order,” which required Indians when they encountered European officers to leave their conveyances and salaam. When pressed by the committee to explain the purpose of such

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an order, the commander insisted that it was not meant to humiliate Indians, but only to reinforce a general sense of respect for authority. This sense had been breaking down, according to the commander, at all levels of Indian society: “The tendency of the present day is to abolish respectfulness. The Indian father will tell you that sons are not respectful even to their parents.”102 Obviously, these instances are different from the Amritsar massacre, as they contain a more psychic rather than physical violence. What is not very different, however, is the mode of explanation. For these army commanders, as much as for General Dyer, the object of martial law is the restoration of what legal theorists like to call the “habit of obedience.” It is difficult to miss the performative and very general nature of these instances. We are now far from the “precise line” standard set down in Rex v. Pinney, if only because it is difficult to make a judgment of precision on an act that seems to have no precise and immediate object: remember, for Dyer the aim was more than dispersing the crowd but something else; for Colonel Johnson it was more than punishment for defacing the posters but something else. In fact, we are probably closer to the Duke of Wellington’s understanding of martial law as not a legal but a sovereign act, not only because it was brought forth under the Crown’s prerogative but also because, as we may recall, for Wellington martial law was the expression of a pure will. It is the expression of this will, this sovereignty, that is required as the prior condition before law and state resume their normal course. And the necessity of this condition is more than just a pragmatic one. That is, it is not just a question of martial law applying to a situation where you must expend more force than you would normally, in some total quantum of ergs. Rather, it seems a deeper, almost conceptual necessity. And what happens when the law returns, so to speak; when the parliamentary committee considers these instances in the form of their normative and normalizing narrative? The Majority of the Hunter Committee find themselves unable to object too much to these odd displays of power. After all, the question is not one of words but substance. The power of ordinary law to preserve order lies, not in its ability to enforce itself on every subject, but in the fact that with all subjects save a few, no need of enforcement will arise. It depends upon the law-abiding

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instincts of the great majority and upon the authority of the government being a received fact. In India at present ordinary methods of government depend for their possibility—not merely their efficiency—on the existence of this relation between people who are Indian and a Raj which is British.103 As this report suggests, something other than authority is seen as needed to counter a breakdown in authority. What follows at this point in the report is the by now inevitable comparison between the situation in the colony and domestic riots. The Majority Committee commends the Punjab government for not viewing each outbreak of unrest as an isolated riot and responding accordingly. That mode, we are told, would only suffice “upon the condition that the authority of Government in the main be respected.”104 Thus, at each point we get a sense that martial law in the colony is a return to a prior condition, before law and before state legitimacy. It is what is needed to construct the state all over again. To the official mindset, however, the troubling aspect of such a formulation was that it placed this coercive force at the heart of law and made such force a condition for the very possibility of law’s existence. Thus, we get the not surprising result of the Hunter Committee condemning each of these punishments, even as it concedes their efficacy, indeed, their indispensability. The committee compulsively returns to an ambivalence, unable either to condemn or condone these actions. Critical of the form of these actions, the committee nonetheless concedes their indispensability. And we are left with this object of performative violence as it floats in and through the text, foundational to the language and action of legal positivism that the committee employs and yet everywhere disavowed.

Conclusion: A Postcolonial Postscript

The idea of a rule of law has emerged in our time as a powerful discourse of legitimacy, one which articulates restraining norms on both governors and governed. As this study of colonial legality has shown, however, there remains an intractable tension between the rule of law and the use of emergency powers that are invoked to confront the various crises of political rule. This tension neither originates nor ends with the colonial period that we have examined. Thus, before I turn to a brief examination of the continuing presence and relevance of a rule of law and emergency in both postindependence South Asia and in the contemporary process called globalization, let me synthesize some of the substantive and methodological arguments of the last three chapters. The first of these points to the advantages of a historical understanding of a rule of law—an understanding of the shifting valences within the concept and its increasing association with a thick normativity characteristic of a modern conception of politics and power. Although the definition of a rule of law has seemingly settled around a few core propositions—equality under the law, an independent judiciary, transparency of rules, and so on—it is a rather fungible category, and as such, as I hope to have shown in this book, is better understood within the larger context of changing conceptions of law and sovereignty and specific power relations. Such an approach also allows us to add something more specific to the familiar refrain of the extension of Western law to the colonies. Certainly by the end of the eighteenth century and the advent of what is called Britain’s second empire, given the daily transactions of Englishmen with the law at every level, the notion of a government of laws—this shibboleth of English politics—was a prime candidate for a newer ideological justification of colonial rule. But we must not forget that the extension of a government of rules to the colonies had much to 133

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do both with the specific exigency of justifying rule over conquered racial subjects—neither slaves nor freemen settlers—and with specific power struggles in Britain itself: the colonies occupied a central place in the ongoing resistance to absolutist claims of the sovereign, in the claims and counterclaims of monarchical prerogative and legal restraint. This is as evident in the decisions of Lord Mansfield in Campbell v. Hall and Mostyn v. Fabrigas—colonial cases decided at the King’s Bench, which were considered throughout the nineteenth century and beyond as key components of the “unwritten constitution”—as it is in the more local struggles between the colonial Supreme Court in Calcutta and the governor-general and council. These contestations were animated not only by concern for the fate of the colony but also by concern over the implications of colonial possessions for the fate of the British Constitution. Of course, toward the middle of the nineteenth century these struggles are largely resolved, but the debate over what the rule of law means in a colonial setting is just beginning. Thus certain features of a rule of law, such as its procedural and institutional emphases, come to be viewed as particularly useful for formulating a concept of lawful government that does not necessarily entail any commitment to selfdetermination. Moreover, as I have argued, these formal elements themselves become markers of “civilization,” allowing administrators to breathe the “spirit” of English law and politics into the specific structure of the colonial regime. Of course, not all the elements of a rule of law are so amenable to a colonial project of justifying rule through racial hierarchy. That ideology would, of course, conflict with the aims of a rule of law to remove legal distinctions between persons and to make everyone subject to the law. As Fitzjames Stephen acidly put it, if the British really wanted to remove all legal distinctions and privileges of person then they had best remove themselves. Here again, however, the colonies provide a useful illustration, an example where the issues are writ large, of the aspirations and limitations of a rule of law. The other main methodological conclusion here is that the rule of law and emergency, norm and exception, the standard and that which contravenes it, must be viewed as powerfully and intimately connected. This, I think, refers to more than just a hermeneutic argument about the impossibility of understanding the part without the whole. Rather, the point I wish to reiterate here is that such an intimate relation

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is about ideological and institutional questions about the source of exceptional powers, the allocation of authority, and so forth. In fact, one of the maneuvers of an ideology of a rule of law itself, which I have tried to contest here, is to portray instances of emergency and the powers deployed to confront it as episodic and interruptive, contained and containable within the otherwise smooth functioning of regular law. One of the implications of this discursive connection is of particular historiographical interest to scholars of law and colonialism. While we have made significant advances in our knowledge and understanding of the functioning of colonial legal regimes (although I do think we need more attention to the genealogy of key concepts—a belief that motivates the work here), we need to see the legitimating project of Western legality and its strained application to colonial exigencies as part of a total complex. Thus with regard to the use of emergency power and the substantial violence it unleashes, it is not a case of “saying one thing and doing another,” for those exceptional powers themselves emerge out of a system of a rule of law. Here the opinion in the habeas corpus case of Ameer Khan is worth recalling. Justice Norman effectively concludes a debate over whether habeas corpus is suitable to Indian society, and answers the government’s need to remove political prisoners from the scrutiny and protection of the courts, by drawing on and enlarging the provisions for the suspension of habeas corpus within the discourse of the rule of law itself. As we have seen, whether in an effort to find discretionary authority in the normal institutional structure of the state, or in a more explicit crisis that requires the use of the military and martial law, the justification of emergency powers is based on the claim of necessity. Such a claim may have its merits, but it needs at all times to be evaluated and questioned, otherwise all critique, whether historical or contemporary and political, crumbles in the face of this tautology of state power. As E. P. Thompson taught us many years ago, the historical understanding of the Black Act was itself hampered by the assumption of many that the passage of the act itself pointed to the necessity to pass it. But a closer inspection of law and emergency in general points to an even more fundamental relation between the normativity of law and the singularity of the exception. The rule-based content of modern law attempts to regulate the claim of necessity by rules. Some of these, such as the common law rule that the “fact” of war was to be established by

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the condition that the civil courts could not physically sit, have been superseded by statutory enactments, while others, such as the rule that the use of force must be guided by proportionality and imminence, are still familiar to us with, for example, the law governing self-defense. Such an effort to locate the claim of necessity within a normative legality, however, does not always match the needs of the sovereignty of the state. Thus our attention to the interplay between norm and exception facilitates a more calibrated understanding of the role of race and the modes of violence in a colonial regime. While the racial animus of colonial societies needs no further documentation, I have concentrated on its particular ideological function. That is, race is the source of the differentiation that structures a grand evolutionary narrative of civilization—the idea that some races need help evolving toward a civilized rule of law facilitates the tutelary justification of colonial rule. But race also acts, as Partha Chatterjee has taught us, as a limit condition that the colonial state cannot subsume into its normative ideology. The point to emphasize here is that this ambiguity in the function of race corresponds to an ambiguity in the justification of force. Thus the admittedly overwhelming force involved in the Amritsar massacre should be understood not just in terms of the amount of force used but also in terms of its avowed purpose—it is understood by General Dyer and his supporters as greater than what would be required for a limited goal, such as dispersing the crowd, but as adequate to the more general purpose of establishing the authority and force of the state at large. This law-founding violence, to use Walter Benjamin’s term, attempts to reinscribe state power through a show of force that cannot be neatly fit into the normative structure of “regular” law. The context of the Amritsar massacre of 1919—the emergence of Gandhi as a national figure, increasing protests and insurgency as well as increasingly draconian responses by the authorities—all offer a powerful intimation of what was to continue for the next three decades leading up to independence. As I have confined myself in this book to the British colonial state and to its conceptions of law and emergency, I have moved over a separate assessment of the various ideas and figures within the nationalist movement. It is, however, important to

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emphasize the continuity between the ideas and practices of law and emergency of the colonial state and the nationalist state. Partha Chatterjee has astutely noted the potential contradiction and ideological recuperation in the discourse of the emerging national state. As Chatterjee notes, the nation-state was “to retain in a virtually unaltered form the basic structure of the civil service, the police administration, the judicial system, including the codes of civil and criminal law, and the armed forces as they existed in the colonial period.”1 This would, of course, raise the question of what distinguished the nationalist agenda from its predecessors. The answer was to concentrate on economic planning and development, even before the formal grant of independence, as that combined the two central refrains of the nationalist critique of colonialism: the exploitative and unrepresentative character of the regime. Thus Chatterjee notes, “It was in planning above all that the postcolonial state would claim its legitimacy as a single will and consciousness—the will of the nation—pursuing a task that was both universal and rational: the well being of the people as a whole.”2 But this thicker normative ideal also meant that the postcolonial state could confront exceptions to this project of national well-being, ranging from strikes and insurgencies to separatist movements, with its inherited arsenal of emergency powers and with an application that was at least as vigorous as that of its predecessors. Thus the problem of emergency, both as an interpretive question in the law and as an administrative practice, does not disappear with the end of colonialism. Rather, it could be argued that the problem intensifies, as postcolonial states inherit the institutional and constitutional framework of the colonial state, and as the courts confront a precedent of emergency jurisprudence within new conditions of state legitimacy. Postcolonial states such as Pakistan, in fact, exhibit a curious political culture, consisting, on the one hand, of a strong executive and a military dominant in civil politics and, on the other hand, a strong judiciary where actions are challenged and judicial outcomes seem to matter. The continuity from colonial to postcolonial legal conditions is particularly true of British colonialism, the end of which although precipitated by protracted nationalist struggles is rarely the result of nationalist wars and revolutions. In fact, in most cases, as in British India, the moment of independence is created through a British statute. At the

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outset, it is important to emphasize that despite the weight and attention given to the moment of independence, that moment does not significantly change the legal status of the successor state. In fact, with British colonialism, the preceding legal order stipulates and produces the new one. Thus in the case of Pakistan, the Indian Independence Act of 1947 (10 and 11 Geo. VI, c. 30) provides the successor states with the constitutional framework of the Government of India Act of 1935 until they are able to create a new constitution for themselves.3 This equally means that the new state inherits the salient and sometimes problematic features of the Government of India Act of 1935. These salient features include a quasi-federalist system in which power is given to provincial bodies but significant matters of defense and external affairs are kept in the control of the center; perhaps more important, the governor-general retains significant discretionary authority and is able by the provisions of sections 42 and 43 to promulgate rules and ordinances for matters of state concern.4 What then, strictly speaking, is the legal status of “independence” in the 1947 act? By the provisions of the act, Pakistan becomes independent because it can secede from the Commonwealth and has no constitutional disability to change its allegiance to the British Crown. Until it does so, however, the state remains a dominion, with its governor-general holding similar powers to those of his predecessors, and its citizens recognized as international British subjects. But, of course, outside such a narrow legal interpretation, something very important has changed after 1947: now the state must accommodate a new theory of sovereignty, one derived from the claims of a nationalist history that created the state. What had, after all, kept the tension between competing claims of state necessity and a rule of law from reaching critical mass in British India was the fact that executive and legislative powers were combined in the single institution of the governor-general and council. In Pakistan after independence, however, the courts had to contend not only with the governor-general’s claims of emergency powers but also with the struggles between the governorgeneral and the constituent assembly. In the years from 1956 to 1958, the Supreme Court of Pakistan was increasingly drawn into the political struggles that overtook the country. The particular case that I opened this book with, the Special Reference, in which the court felt compelled to accept a theory of emergency

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powers that is contrary to ordinary law, is quickly followed by a series of cases that reiterate the principle of emergency. During the same period, in 1956 to be precise, a number of prominent Indian jurists, including two judges from the Indian Republic’s Federal Supreme Court, gathered together at the Barcelona meeting of the International Association of Legal Science. Part of the conference’s activities were dedicated to the “study of the reception of western law in India.”5 The unanimous conclusion was that “the respect for the Rule of Law . . . was the most important and the most beneficial heritage of the British period.”6 More recent assessments of the legal legacy of colonialism have been decidedly less sanguine. While the Indian republic’s success in electoral democracy and constitutionalism can hardly be compared to Pakistan’s overt authoritarianism and prolonged periods of military rule, the problematic of emergency has continued both implicitly and explicitly. The explicit version is, of course, Indira Gandhi’s 1975 Declaration of Emergency. As Lloyd Rudolph and Susanne Rudolph point out, however, even as early as the drafting of the Indian republic’s constitution, various efforts were made to create and maintain extensive powers for the central executive.7 For our purposes, what is particularly fascinating about the story they chronicle is how the terms of the colonial state were utilized now to ensure the success of the “people’s will.” What this meant was that the principle of unlimited parliamentary sovereignty—a principle that we have encountered all the way from Dicey and the theory of a rule of law in the introduction of this work to the contestations of power within the colonial state throughout the nineteenth century—was used to argue for limitations on judicial review. Thus Rudolph and Rudolph note that “Nehru and the Congress Left were deeply concerned that the judiciary would create obstacles to the realization of socialist objectives, while ‘hard state’ advocates, led by Patel, were concerned that the courts would jeopardize the state’s capacity to maintain law and order.”8 And while Nehru may have been “liberal” enough to concede the need for fundamental constitutional rights, the logic of emergency was embedded enough to allow for a provision for administrative detention in Article 22 of the Constitution, and for later acts enlarging discretion such as MISA (the Maintenance of Internal Security Act)9 and the Defence of India Rules.10 With regard to the latter, A. W. B. Simpson notes that “India provides another example of a state whose use of

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detention flourished after its independence . . . the detention power of Rule 30 brought in a scheme that largely reproduced the 1939 Defence of India Act and the wartime British Emergency Code.”11 When a crisis occurs, the postcolonial state declares emergency much like its colonial predecessor and through similar institutional mechanisms. The courts now, however, must negotiate claims between a separate executive and legislature, and must be guided by a colonial constitutional structure and a nationalist ideology of popular sovereignty. One could certainly say that to the extent that the concept of emergency is deeply inscribed into the legal condition of the modern state and its raison, the arrival of the nation—that is, the move from the colonial to the nation-state—is hardly sufficient to escape its operational logic. But with the increasing pace of the process called globalization, and the diminishing of the powers of the traditional nation-state that such a process entails, one could question whether the concept of emergency is becoming obsolete.12 Since globalization is itself only a shorthand term used to designate disparate developments, ranging from the emergence of a transnational economy to new juridical forces such as human rights, examining its continuity and change from older colonial forms of norm and exception will also allow me to reiterate and replace some of the features central to my argument. A cursory survey of the theoretical efforts to define globalization reveals a familiar refrain. Globalization is plotted through the narrative device of a passing or a passage. As a putatively obsolete or at least older system is left behind and a new system emerges, such a critique cannot help but ask whether what is encountered is authentically new or really just an older force recast in a newer form—or as Etienne Balibar memorably phrases it, “a barely reworked variant.” Of course, there are good reasons for such questioning. The current expansion of global capital simply is reminiscent of an older colonial order of “free trade,” complete with a concurrent emphasis on the development of international legal regimes and the dissemination of universal normative expectations. If, as I suggested in the introduction, our story of a colonial rule of law and emergency begins with the near unanimous belief that the establishment of Western legal systems was a necessary precondition to the growth of “trade and civilization,” then the current

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global landscape would seem only another chapter in an ongoing story. One aspect of globalization that most observers would agree with is the emergence of a new geography of economic production. The intensification of technological advances in transportation and more importantly in communication have facilitated not only the worldwide dispersal of factories and offices, but also a new global division of labor, with, for example, the off-shoring of clerical work and the centralization of managerial functions.13 Such a material transformation has invited descriptions of globalization that highlight ideas of “flows” and of a “borderless world.” While I think it is prudent to remain skeptical of such “borderlessness,” here it is important to emphasize that such a global system from its very beginning also creates new universal forms of normativity and legality. The “universality” of these forms can either be one of a relative autonomy from the legal systems of nation-states, such as the growing arena of international commercial arbitration known as lex mercatoria,14 or one of a universal standard that applies to nation-states, such as the idea of human rights. Even more specific to our purposes is the fact that human rights from the beginning of their institutional establishment following World War II have been yoked to the idea of a rule of law. Thus the inaugural document, the Universal Declaration of Human Rights, announces in its preamble: “Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”15 Such an assertion emphasizes the importance of a rule of law for national regimes by invoking a quasi-Lockean right to rebellion in its absence. As Norman Marsh notes, this invocation of a rule of law takes it beyond its specific common law history to the level of a “supra-national concept.”16 Such an extension of the concept is actually twofold: the rule of law is invoked as a standard for the internal functioning of regimes and as a goal for the functioning of international law. The latter, as well as some of its specific ideological commitments, is clear in the recent report by the Commission on Global Governance, charmingly titled Our Global Neighbourhood, which calls for “Strengthening the Rule of Law Worldwide.”17 Why, we may ask, are the discourses of human rights and a rule of law invoked so often in tandem? Of course, to the extent that the discourse of human rights entails a more elaborate vision of political rights

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and legal protection, it requires certain institutions associated with the rule of law, such as an independent and vigorous judiciary and an established professional class of lawyers and advocates. Political rights, however, are just one component of the ever-increasing scope of human rights. Often labeled the first generation of rights that followed the end of World War II, political and civil rights have since been supplemented by economic and cultural rights, the right to health, and socalled third-generation collective rights such as the right to development. Human rights and the rule of law are not intended to apply only to the public and institutional arrangements of national and international arenas, but are equally understood as reaching into the lives of subjects, potentially directing everything from marriage and child rearing to education and culture. Human rights aspire to be a universal code of personal and political conduct of an emergent global citizenry. The institutional and procedural elements of a rule of law are themselves the product of an effort to infuse the law with the “spirit” of cultural and normative commitments. Indeed, the invocation of a rule of law alongside the discourse of human rights points to its constitutive role in a new normative vision that encompasses almost all aspects of human existence. Given such a strong normative thrust in the legal regime of human rights and a rule of law, numerous scholars from a range of disciplines from anthropology to legal theory have noted how contemporary human rights discourse is reminiscent of older colonial claims of the civilizing mission. Such a linkage is important to note for any critique of colonialism that is informed by postcolonial theory because, as Eve Darian-Smith and Peter Fitzpatrick have correctly noted in Laws of the Postcolonial, whatever else one may say of human rights, there is little denying that they have become “the ‘new’ standard replacing civilization as the criterion for dividing and judging the world.”18 I have argued that the concept of emergency cannot be separated from the logic of a rule of law. To that extent, while the normative claim of a rule of law and the conception of emergency may now be working in new and different ways, it is still very much part of our legal landscape. Globalization understood as something other than just the breakdown of spatial boundaries draws on and reinforces this particular normative standard. It is true that the new forces of global capital organized around mega-cities, concerned with finance rather than

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goods, and electronic in the mode of its movement, create a system that exceeds borders and demarcated spaces. Nonetheless, as Saskia Sassen points out, this process has not involved a simple disappearance of the state form but rather calls on the national state and its powers to create local conditions hospitable to the flourishing of a global system.19 The prominence of new international financial institutions and arrangements, such as the World Trade Organization and the World Bank, may have diminished the traditional control that states have had over their economies, but equally the needs of transnational corporations require new and interventionist powers, including the use of emergency powers and the military. Thus Sassen is correct in insisting that “firms operating transnationally want to ensure the functions traditionally exercised by the state . . . the state here can be conceived of as representing a technical administrative capacity which cannot be replicated at this time by any other power; further, this is a capacity backed by military power.”20 Thus within a new global order itself we find multiple instances of local crises and their “management” by familiar exercises of emergency powers. This point about the frequent, almost regularized flashes of national emergency, as well as the powers deployed to combat it, within the global system itself, is equally emphasized in Michael Hardt and Antonio Negri’s collaborative work, Empire.21 This sprawling work (too vast to consider in any comprehensive way here), a self-described “new communist manifesto” for the age of globalization, points to a proliferation of crises, or in the preferred terminology of the authors, of “omnicrisis,” from the Chiapas rebellion in Mexico to the crippling strikes in Paris in 1995 and in South Korea on 1996. Although the immediate cause and target of these protests were specific political and economic conditions within the national state, to many observers it was clear that these instances were equally symptoms of globalization itself. Hardt and Negri argue, for example, that the case of Chiapas, Mexico, illustrates “the systematic exclusion and subordination in the regional construction of the world market.”22 These cases are a powerful reminder that the use of the state form and its access to emergency powers is far from obsolete in the era of globalization—indeed, it may be crucial to the very construction of that phenomenon. Nor are these flashpoints of “national” emergencies the only examples of crisis and response in the contemporary world. Throughout the

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last decade of the twentieth century, from Somalia to the Balkans, a newer form of “humanitarian” emergency has appeared and prompted an unprecedented response in the form of international, or more precisely great power intervention. Where does this new right of intervention derive from? Should we understand it in terms of older domestic state theories of a sovereign prerogative to maintain peace and order? According to Hardt and Negri, such an intervention cannot be located in the received idiom of sovereignty and social contract. Rather, they trace this right to an emergent consensus of universal values, to a global normativity. Drawing on the work of Carl Schmitt, with whom we are now familiar, they insist that it is the vision of a universal humanity, drawn from the discourse of human rights and the rule of law, that itself directs the perception of these exceptions as well as shapes the response to them: “What stands behind this intervention is not just a permanent state of emergency and exception, but a permanent state of emergency and exception justified by the appeal to essential values of justice. In other words, the right of the police is legitimated by universal values.”23 And while some observers such as Noam Chomsky view this new formation of norm and exception as a perpetuation of an older order of great powers, Hardt and Negri are more equivocal: “Who will be able to define the concept of peace? Who will be able to unify the process of suspending history and call this suspension just? Around these questions the problematic of Empire is completely open, not closed.”24 While I think that a conclusion, either affirmative or oppositional, about these still fluid forms of legitimacy and justice, authority and crisis, is perhaps premature, my more modest goal here has been to show how the idiom and methodology that animate this book offer a useful mode of recognizing and understanding these new formations. Ultimately, one can conclude that while sovereignty and the rule of law take on new normative idioms and new targets of control, the essential idea of a rule of law and emergency is still very much relevant today.

Appendix A

The Administrative Structure of Justice in British India

The structure of justice in British India was divided by classes of juridical subjects. Crown Courts, headed by the Supreme Court at Calcutta, initially held jurisdiction over all residents of the presidency town of Calcutta and later over British subjects in the mofussil (countryside). Company courts held jurisdiction over the natives of the mofussil. I. Until 1772, a mixed system of justice existed in India. a. In the province of Bengal, country courts, distinct from both Crown and Company courts, continued their jurisdiction. The Nawab at Murshidabad, in actuality only possessing a nominal authority, continued as supreme magistrate or Nazim. He personally tried all capital cases and held court every Sunday. The Diwan with his deputy the Daroga Adalat Diwani tried all civil and revenue cases. Matters relating to inheritance and succession among Muslims were decided by a Qazi, assisted by a Mufti. In reality, much dispute settlement was achieved within the villages themselves, through the institution of the Panchayats. b. Crown courts in the town of Calcutta were established with differing jurisdictions and powers through the Charters of 1726 and 1753. The principal courts were: The Mayor’s court, which consisted of the mayor and nine aldermen, had jurisdiction over civil suits, and above a certain sum, appeal from the court lay with the Privy Council in England. The Charter of 1753 restricted the jurisdiction of the court to suits between Europeans, and cases between natives could only be tried with the consent of the parties; the governor and council con145

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Appendixes stituted a Court of Oyer and Terminer and jail delivery for criminal matters within the town; additionally, the Charter of 1726 constituted the governor and council as justices of the peace, and the Charter of 1753 set up a Court of Requests for the recovery of small debts.

II. The 1772 Regulating Act [13 Geo. III, ss. 36–63] empowered the governor in council to make bylaws for the town of Calcutta. It also empowered the sovereign to erect by Letters Patent and Charter a Supreme Court [13 Geo. III, ss. 13–22]. The Supreme Court was established accordingly in 1774, absorbing the Mayor’s court and the functions of Oyer and Terminer—Sir Elijah Impey was the first chief justice of the court along with three other judges. As for the mofussil, Warren Hastings’s Scheme for the Administration of Justice, 1772 set up a new administration of justice (courts listed in descending order of jurisdictional importance). a. Civil: Sadr Diwani Adalat—Mofussil Diwani Adalat, with executive and judicial functions combined in the Collector— Small Cause Adalat. Criminal: Sadr Nizamat Adalat— Mofussil Foujdari Adalat. b. Procedural Safeguards: open hearings; record keeping; oral evidence; court fees. c. Under the Modifying Plan of 1773, effective from January 1774, the executive and judicial functions of the collector were separated. III. Lord Cornwallis’s Reforms. a. Revenue collection and civil jurisdiction once again combined in the collector, only to be changed yet again in 1793. Initially revenue courts under the collector were kept separate as mal adalats, which were later abolished. b. Changes in criminal justice; Muslim law was deemed too harsh and the Mofussil Foujdari Adalat too corrupt, and hence both were changed, with Courts of Circuit set up in four divisions, namely, Patna, Calcutta, Murshidabad, and Dacca. c. The final shape after the Permanent Settlement of 1793: Civil: Sadr Diwani Adalat—Provincial Court of Appeal at the divi-

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sional level—Mofussil Diwani Adalat at the District level— Munsiffs and Registrar. Criminal: Sadr Nizanat Adalat—Circuit Court—Mofussil Diwani Adalat—Magistrates (collectors) limited to petty offenses. IV. Other changes. a. The separation of the executive and the judiciary did not apply to the Sadr Adalats, as the governor-general in council also performed as a judge. Lord Wellesley objected to this, and under Regulation II of 1801, the governor-general and council appointed judges to the Sadr Diwani and Nizamat Adalats. The chief justice was to be a member of the council but the governor-general was not to hold office. b. Under Warren Hastings in 1812 through 1814, the civil jurisdiction was redistributed with an elaborate structure of appellate and original jurisdiction set up. c. Due to the volume of cases, Lord Bentinck established a Sadr Diwani and Nizamat Adalat at Allahabad, 1 January 1832. V. Madras. The preceding setup belongs to Bengal and in skeleton form was replicated in the other presidencies, with some differences. After the Munro Commission of 1814 the system was as follows: a. Civil: similar to Bengal but with appeals from the Sadr Diwani Adalat in Madras made to the governor-general at Calcutta. Criminal: Sadr Nizamat Adalat—sessions courts— magistrates responsible for arrests and petty offenses— Native Criminal judges responsible for petty offenses. b. Regulation V of 1816 established the major difference between Madras and the Bengal presidency by recognizing the institution of the village Panchayat (favored by Munro and other “nativists”). Munsiffs would call respectable residents from the village who were given jurisdiction over all suits. The decision could be overturned by the council if nepotism was found, but if the verdict was upheld by another Panchayat then it was held as final. VI. Bombay. a. Initially set up in 1799 as almost identical to Bengal, but reorganized after Regulation II of 1827.

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Appendixes b. Civil: Sadr Diwani Adalat—District Diwani Adalat—assistant judges—native judges. Criminal: Sadr Foujdari Adalat—court of circuit—collectors serving as magistrates—village headmen, responsible for petty offenses.

VII. Nonregulation provinces. A curious anomaly in the administrative structure of the Company, the nonregulated provinces were territories added on in the nineteenth century, where the Company ruled as a military state and without the application of the principles developed in the Bengal presidency. Although the Punjab, acquired by Dalhousie in 1849, was often cited as an example, other nonregulation provinces included Assam, Oudh, and the Central Provinces. Act XIX of 1865, the Punjab Courts Act, set up seven grades of courts, all combining executive and judicial functions, and claiming jurisdiction over civil and criminal cases. Listed in ascending order: a. Court of Tahsildar Civil cases up to 300 rupees; b. Court of Assistant Commissioner (ordinary) Civil jurisdiction up to 500 rupees; c. Court of Assistant Commissioner (special) same; d. Court of Assistant Commissioner (full) Civil jurisdiction up to 10,000 rupees; e. Court of Deputy Commissioner Original and Appellate jurisdiction over first three courts; f. Court of Commissioner Original and Appellate jurisdiction over all preceding courts; g. Court of Judicial Commissioner Highest Court of Appeal. VIII. The Introduction of the High Courts. The Indian High Courts Act of 1861, which came into effect in 1862, set up High Courts in the old presidency towns, abolishing both the Supreme Court of the Crown and the Adalats and absorbing their jurisdictions. In 1915 a High Court was set up in Patna, and in 1919 in Lahore.

Appendix B

The History of Nineteenth-Century Legal Codification in British India

I. The Permanent Settlement of 1793 under Lord Cornwallis sets up the separation of executive and judicial powers. a. The collector as executive of the district is stripped of police and judicial powers, and a combined office of civil judge and criminal magistrate is set up. b. A court of appeals is established at Calcutta. c. The police are set up in a new administration of subdistricts or thanas. d. Courts of appeal for the cases coming from the mofussil, the Sadr Diwani and Nizamat Adalats, are established as distinct from the Supreme Court under the auspices of the Crown, with the latter having no jurisdiction over the mofussil. II. After much debate the need for systematic legal codification is accepted under the Charter Act of 1833, and consequently a law commission is established. a. Section 53 of the Charter Act contained the provision for the establishment of an all-India legislature having legislative authority throughout British India and the provision for the creation of a new office of law member on the governor-general’s council, and the creation of a law commission to be appointed by the governor-general. III. First law commission appointed in 1834. Members include T. B. Macaulay, J. M. Macleod, G. W. Anderson, and F. Millet. a. In 1838 submits a draft of the Penal Code and recommendations for the completion of a Civil Code. 149

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Appendixes b. In October 1840, submits a Lex Loci Report, insisting on the need for a fully acknowledged law of the land. The commission argued that neither “Mohammedan” nor Hindu law could serve the purpose, as they were too interwoven with particular religious prescriptions that made them inapplicable to subjects of other faiths. Thus English law should be declared the law of the land, as it was ipso facto the law of all territories that became part of the Crown and was binding in India on subjects who did not belong either to Hinduism or to Islam. The report did recognize some exceptions: local regulations, laws deemed inapplicable to India, and laws directly deriving from English land laws and rules of inheritance.

IV. Second law commission called for in section 28 of the Charter Act of 1853. Members include Sir John Romilly, Sir John Jervis, Sir Edward Ryan, R. Lowe, C. H. Cameron, John Macleod, and T. F. Ellis. a. Prepared drafts of the codes of criminal and civil procedure. b. In the second report of 13 December 1855, emphasized the need for a substantive civil law, but disagreed with the Lex Loci Report of 1840, arguing instead that although English law could be used as the basis for the development of civil law, it needed to be greatly simplified and reduced. Sir John Jervis and Robert Lowe dissented, arguing that English law should be admitted in full and at once. V. Some important legislation was enacted during the tenure of the second law commission. a. 1859—Code of Civil Procedure (Act VIII of 1859). b. 1859—Limitation Act (Act X of 1859). c. 1860—Penal Code. d. 1861—Code of Criminal Procedure (Act XXV of 1861). VI. Third law commission created in December 1861, on the recommendation of the second commission. Members include Sir John Romilly, Sir W. Erle, Sir E. Ryan, Mr. R. Lowe, Justice Willes, and J. M. Macleod. The third commission produced numerous drafts of codes on aspects of substantive law and sent them to

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successive secretaries of state who in turn sent them to the government of India for enactment. The commission resigned in 1870 over an argument with the governor-general over the Contract Bill. Chronologically the reports are: a. 1863—Succession Act draft. b. 1866—Contract Act draft. c. 1867—Negotiable Instruments Act draft. d. 1867—Reply to the government of India on performance to date. e. 1868—Evidence Act draft. f. 1870—Transfer of Property Act draft. g. 1870—Revisions of the Code of Criminal Procedure. h. 1870—Insurance Act draft. VII. Legislative enactments under Sir Henry Maine and Sir Fitzjames Stephen, 1865–72. a. 1865—Marriage Act and the Succession Act. b. 1866—Companies Act. c. 1868—General Clauses Act. d. 1869—Divorce Act. e. 1872—Evidence and Contract Act. f. 1872—Revised Code of Criminal Procedure and Marriage Act. VIII. Lord Salisbury instructs the government of India to continue the process of codification, and thus on 11 February 1879, a fourth law commission is appointed. Members include Charles Turner, Raymond West, Whitley Stokes, and judges of the Bombay High Court. a. Report of 15 November 1879, recommending that English law should provide the basis for future law codes. IX. Legislative enactments. a. 1881—Negotiable Instruments Act. b. 1882—Acts of Trusts, Transfer of Property, and Easement. X. By 1882 the process of codification largely slows down.

Notes

Chapter 1 1. Special Reference P.L.D. 1955 F.C. 435. The transcript of the case used here is available in Sir Ivor Jennings, Constitutional Problems in Pakistan (Cambridge: Cambridge University Press, 1957), 249. 2. Special Reference, 298. 3. A word right away on the denotative use of British and English. Although in cultural terms what we are concerned with here is very much an English tradition of law and constitutionality, particularly to its advocates (no one claims that Welsh law is the source of a civilizing mission), there is technically no such thing as the English constitution by the eighteenth century and after the Acts of Union. Therefore, when I refer to institutional structures of government and constitution, I denote them as British but use the word English to distinguish cultural and historical meaning. 4. John Brewer and John Styles, eds., An Ungovernable People: The English and Their Law in the Seventeenth and Eighteenth Centuries (New Brunswick, N.J.: Rutgers University Press, 1980), 13–14. 5. Ibid. 6. James Fitzjames Stephen, in W. W. Hunter, Life of the Earl of Mayo, vol. 2 (London, 1875), 168–69. 7. James Fitzjames Stephen, in the prosecution of Regina v. Nelson and Brand, quoted in Geoffrey Dutton, The Hero as Murderer: The Life of Edward John Eyre, Australian Explorer and Governor of Jamaica, 1815–1901 (London: William Collins, 1967), 365. 8. For a comprehensive review of some of the major works in the field, see Sally Engle Merry, “Review Essay: Law and Colonialism,” Law and Society Review 25, no. 6 (1991): 889–992. 9. For the colonial construction of “custom,” see Martin Chanock, Law, Custom, and Social Order: The Colonial Experience in Malawi and Zambia (Cambridge: Cambridge University Press, 1985). For a work in a similar vein but more evocative of indigenous understandings and local events, see Sally Falk

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Notes to Pages 6–8

Moore, Social Facts and Fabrications: “Customary Law” on Kilimanjaro, 1880–1980 (Cambridge: Cambridge University Press, 1986). 10. Edward W. Said, Orientalism (New York: Vintage, 1979). 11. This is a very broad literature, and one can do no more here than highlight some important contributions. For development of Said and the arguments of Orientalism, see Lisa Lowe, Critical Terrains: French and British Orientalisms (Ithaca: Cornell University Press, 1991); Timothy Mitchell, Colonizing Egypt (Berkeley: University of California Press, 1991); Ronald Inden, Imagining India (Cambridge: Basil Blackwell, 1990); and Carol Breckenridge and Peter van der Veer, eds., Orientalism and the Postcolonial Predicament: Perspectives on South Asia (Philadelphia: University of Pennsylvania Press, 1993). There have been more direct applications and considerations of Foucauldian theory in colonial discourse, such as Ronald Hyam, Empire and Sexuality: The British Experience (Manchester: Manchester University Press, 1990). For one of the most subtle and insightful engagements with Foucault through the prism of colonial sexuality, see Ann Laura Stoler, Race and the Education of Desire: Foucault’s History of Sexuality and the Colonial Order of Things (Durham and London: Duke University Press, 1995). 12. Regulation III, April 7, 1818. India Office Records. V/8/19. 13. A. W. B. Simpson traces the effects of the Bengal regulation to late-nineteenth-century emergency law in Ireland. See his “Round Up the Usual Suspects: The Legacy of British Colonialism and the European Convention on Human Rights,” Loyola Law Review 41 (1996): 629–711, esp. 639. 14. See, for example, Fitzpatrick’s argument that such a division can be traced back “to the middle ages, to take it no further back,” and that in modern law there remains “a persistent contradiction between law as avatar of the god of order and law as avatar of the god of illimitable sovereignty.” Peter Fitzpatrick, The Mythology of Modern Law (London: Routledge, 1992), 58–59. 15. Franz Neumann, The Rule of Law: Political Theory and Legal System in Modern Society (Leamington Spa, U.K: Berg, 1986), 4. 16. For example, Joseph Raz points out that the rule of law is made to cover an entire spectrum of political ideals, such as when in 1959 the International Congress of Jurists meeting in New Delhi maintained that the purpose of “a free society under the Rule of Law is to create and maintain the conditions which will uphold the dignity of man as an individual.” See Joseph Raz, “The Rule of Law and Its Virtue,” in The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979), 210–11. 17. For details of this inheritance, see Friedrich A. Hayek, The Constitution of Liberty (Chicago: Gateway Edition, 1972), 164–65. 18. Ibid. 19. Ibid.

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20. A. V. Dicey, Introduction to the Study of the Law of the Constitution, 5th ed. (1855; reprint, London: Macmillan and Company, 1897), 179–87. 21. Raz, “Rule of Law,” 211. 22. Quoted in Thomas Metcalf, Colonial Ideologies (Cambridge: Cambridge University Press, 1998), 206. 23. J. F. Stephen, Minute on the Administration of Justice in British India (1872). IOR V/23/19 Index 115. 24. E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (New York: Pantheon Books, 1975), 16. 25. Ibid., 23. 26. Ibid., 263. 27. Ibid., 259. 28. H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), 74–75. 29. Michel Foucault, “An Introduction,” in The History of Sexuality, vol. 1, trans. Robert Hurley (New York: Vintage, 1990). 30. This point is emphasized in François Ewald, “Norms, Discipline, and the Law,” Representations 30 (spring 1990): 138–61. 31. Michel Foucault, “Governmentality,” in The Foucault Effect, ed. Graham Burchell, Colin Gordon, and Peter Miller (Chicago: University of Chicago Press, 1991). Also see Colin Gordon, “Governmental Rationality: An Introduction,” in the same volume. 32. Foucault, “Governmentality,” 102. 33. Ewald, “Norms, Discipline, and the Law,” 139. 34. Foucault, “Governmentality,” 104. 35. Joseph Bendersky, Carl Schmitt: Theorist for the Reich (Princeton: Princeton University Press, 1983). 36. Martin Jay, “Carl Schmitt: Theorist of the Reich,” Journal of Modern History 56 (September 1984): 558–61. 37. Agostino Carrino, “Carl Schmitt and European Juridical Science,” in The Challenge of Carl Schmitt, ed. Chantal Mouffe (New York and London: Verso, 1999). This collection is one that tries to consider the deep challenges Schmitt’s thought poses to liberal theory. 38. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, 2d ed., trans. George Schwab (1932; reprint, Cambridge: MIT Press, 1985), 5. 39. Antonin Scalia, “The Rule of Law as Law of Rules,” University of Chicago Law Review 55, no. 4 (fall 1989): 1175–88. 40. Fred Dallmayr, “Hermeneutics and the Rule of Law,” in Deconstruction and the Possibility of Justice, ed. Drucilla Cornell, Michel Rosenfeld, and David Gray Carlson (New York and London: Routledge, 1992), 284. 41. John Locke, Two Treatises of Government, ed. Peter Laslett (1690; reprint, Cambridge: Cambridge University Press, 1988), 375.

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42. Charles-Louis de Secondat Montesquieu, The Spirit of the Laws, ed. and trans. Anne M. Cohler, Basia Carolyn Miller, and Harold Samuel Stone (1748; reprint, Cambridge: Cambridge University Press, 1989), book 11, chap. 6, 159. 43. The phrase is taken from the title of Chief Justice Rehnquist’s work on emergency powers in the U.S. system; see William H. Rehnquist, All the Laws but One: Civil Liberties in Wartime (New York: Knopf, 1988). For a more critical indictment of wartime powers and excesses in Britain, see A. W. B. Simpson, In the Highest Degree Odious: Detention without Trial in Wartime Britain (Oxford: Clarendon Press, 1992). 44. Clinton L. Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton: Princeton University Press, 1948). 45. Ibid., vii. 46. Ibid., 6. 47. Ibid., 7–8. 48. Ibid., 13. 49. Ibid., 14. 50. Schmitt, Political Theology, 31. 51. Ibid. 52. Ibid., 6. 53. Ibid., 13. 54. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Stanford: Stanford University Press, 1998), 18. 55. Dicey, Law of the Constitution, 270; Sir Ivor Jennings, The Law and the Constitution (1933; reprint, London: University of London Press, 1959). Also see Holdsworth’s disagreement with Jennings’s reading of a rule of law, and his insistence that the concept has to be understood in a wider sense, with a long genealogy dating back to medieval times. W. S. Holdsworth, “Review of Introduction to the Study of the Law of the Constitution, 9th ed.,” Law Quarterly Review 220 (October 1939): 585–88. 56. Dicey, Law of the Constitution, 413. 57. R. F. V. Heuston, Essays in Constitutional Law (London: Stevens and Sons, 1964), 2–3. 58. Nicholas Thomas, Colonialism’s Culture: Anthropology, Travel, and Government (Princeton: Princeton University Press, 1994). 59. This, of course, refers to the seminal work on the subject: J. G. A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century. A Reissue with a Retrospect (Cambridge: Cambridge University Press, 1987). 60. For a discussion of the work of early civil and canon lawyers on conquest, see Hans Pawlisch, Sir John Davies and the Conquest of Ireland: A Study in Legal Imperialism (Cambridge: Cambridge University Press, 1985).

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61. Ibid. 62. Calvin’s Case, 77 E.R. 377 (Exchequer, 1608). For an engaged and comprehensive reading of the case, see James H. Kettner, The Development of American Citizenship, 1608–1870 (Chapel Hill: University of North Carolina Press, 1978), 16–25. 63. Campbell v. Hall, 98 E.R. 1045 (K.B., 1774); Mostyn v. Fabrigas, 98 E.R. 1021 (K.B., 1774). 64. Edmund Burke, The Complete Works of the Right Honourable Edmund Burke, rev. ed., vol. 2 (Boston: Little, Brown, 1866), 446. 65. P. J. Marshall, “Empire and Authority in the Later Eighteenth Century,” Journal of Imperial and Commonwealth History 25, no. 2 (1987): 115. 66. Richard Roberts and Kristin Mann, “Law in Colonial Africa,” in Law in Colonial Africa, ed. Mann and Roberts (London: Heinemann, 1991), 11. 67. Ibid. 68. Reasons Against Establishing an East India Company with a Joynt-Stock Exclusive to all Others (London, n.d.—probably 1693). There are numerous other pamphlets similar in scope and argument: Reasons humbly Offered against Establishing the Present East India Company by Act of Parliament, exclusive of others, and confirming their Charters (London, 1696); and Extract of divers Passages relating to Exclusive Joint Stock Companies, taken from Monsieur Dewitt’s Treatise of the True Interest and Political maxims of Holland and West-Friedland (London, 1702). 69. Anonymous, A Candid Examination of the Reasons for Depriving the EastIndia Company of its Charter, Together With Strictures On Some of the SELF-CONTRADICTIONS and HISTORICAL ERRORS of DR ADAM SMITH in his Reasons for the Abolition of said Company (London, 1779), emphasis in original. For the Company’s Private Papers: I.O.R. A/2/9. 70. Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (1776; reprint, Oxford: Oxford University Press, 1993), 369. 71. Partha Chatterjee, The Nation and Its Fragments: Colonial and Postcolonial Histories (Princeton: Princeton University Press, 1993), 14. 72. Ibid., 16. 73. Ibid., 21. 74. Ibid., 19. 75. Montesquieu, Spirit of the Laws, book 14, 234. 76. Macaulay’s views on the Black Act may be found in series of Minutes in the collection edited by C. D. Dharker, Lord Macaulay’s Legislative Minutes (Madras: Oxford University Press, 1946), 192–93. Hereafter cited by Minute number with page numbers following. 77. Minute no. 10, 177. 78. Minute no. 12, 196. 79. Chatterjee, Nation and Its Fragments, 21.

158

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80. Ranajit Guha, Dominance without Hegemony: History and Power in Colonial India (Cambridge: Harvard University Press, 1997), 64. Chapter 2 1. H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961). 2. Sally Falk Moore, “Treating Law as Knowledge: Telling Colonial Officers What to Say to Africans about Running ‘Their Own’ Native Courts,” Law and Society Review 26, no. 1 (1992): 11–46. 3. Ibid., 22. 4. Ibid., 41. 5. Neil MacCormick, H. L. A. Hart (Stanford: Stanford University Press, 1981), 18–19. 6. Hart, Concept of Law, 78. 7. Ibid., 54–55. 8. Ibid., 91. 9. James Fitzjames Stephen, “Codification in India and England,” Fortnightly Review 18 (1872): 644–72, esp. 648–50. 10. Edward Thompson and G. T. Garett, Rise and Fulfillment of British Rule in India (London: Macmillan, 1934). 11. Ibid., 654. 12. David Scott, Refashioning Futures: Criticism after Postcoloniality (Princeton: Princeton University Press, 1997). 13. Ibid., 152. 14. Ibid., 152–53. 15. Eric Stokes, The English Utilitarians and India (Oxford: Oxford University Press, 1959), 145. 16. Ibid. 17. Stephen, “Codification in India and England,” 654. 18. James Fitzjames Stephen, A Life of the Earl of Mayo (London, 1875), 153–54. 19. The Indian Councils Act, 1 August 1861. 24 & 25 Vict., c. 67, S.22. I.O.R. V/1/184. 20. See, for example, Varden Seth Sam v. Luckpathy Royjee Lallah et al. [1862], Moore’s Indian Appeals, 9:307. 21. Frederick Pollock, The Expansion of the Common Law (London: Stevens and Sons, 1904), 133. 22. Oliver Wendell Holmes, “Critical and Biographical Introduction,” in Montesquieu, Spirit of the Laws, trans. Thomas Nugent (New York: D. Appleton, 1900), xiv.

Notes to Pages 44–47

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23. Durkheim’s designation of Montesquieu and its significance is noted in Louis Althusser, Montesquieu, Rousseau, Marx: Politics and History, trans. Ben Brewster (London: Verso, 1982), 17. 24. Calvin’s Case, 77 E.R. 377 (Exchequer, 1608). The case is also in Howell’s State Trials, vol. 2. Also see James H. Kettner, The Development of American Citizenship, 1608–1870 (Chapel Hill: University of North Carolina Press, 1978), 16–25. 25. Calvin’s Case, 407. 26. Ibid., 398. 27. Campbell v. Hall, 1 Cowper 204; 98 E.R. 1045 (K.B., 1774), esp. 1049. Lord Mansfield ended the opinion by declaring that the necessary changes involved in that case would have to be made either through the assembly of the colony or through an act of the British Parliament. See also 1050. James Kettner argues that Coke in Calvin’s Case meant the Irish Parliament, in The Development of American Citizenship, 25. Thomas Barnes seems to agree with this conclusion; see “‘As Near as May be Agreeable to the Laws of this Kingdom’: Legal Birthright and Legal Baggage at Chebucto, 1749,” in Law in a Colonial Society: The Nova Scotia Experience, ed. Thomas Barnes, Sandra Oxner, and Peter Waite (Toronto: Carswell, 1984), 10. The implications for the North American colonies are discussed in detail by Barbara A. Black, “The Constitution of Empire: The Case for the Colonists,” University of Pennsylvania Law Review 124, no. 1157 (1976). 28. Quoted in Perry Anderson, Lineages of the Absolutist State (London: Verso, 1974), 463. As Anderson notes, “Despotism was thus expressly attributed to Asia in the fons et origo of all political philosophy in Europe.” Aristotle’s use of the term is ambiguous at best. Sometimes it appears as the designation for the degeneration of the demos into tyranny, and at other points it refers to the lawful and hereditary form of certain Asiatic regimes. See R. Koebner, “Despot and Despotism: Vicissitudes of a Political Term,” Journal of the Warburg and Courtauld Institutes, vol. 14 (London: University of London, Warburg Institute, 1951). 29. See Franco Venturi, “Oriental Despotism,” Journal of the History of Ideas 24, no. 1 (Jan.–Mar. 1963). 30. Koebner, “Despot and Despotism,” 275. 31. In Althusser, Montesquieu, 75. 32. Ibid. 33. Ibid. 34. Montesquieu, Spirit of the Laws, book 2, chap. 1, 10. 35. Ibid., book 3. 36. Ibid., book 2, chap. 1, 10. 37. Ibid., book 5, 57.

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Notes to Pages 48–57

38. Ibid., book 6, 76. 39. Ibid., book 6, 76. 40. Ibid., book 11, 157 41. Ibid., book 14, 231. 42. Ibid., book 5, 62–64. 43. Ibid., book 14, chap. 5. 44. Althusser, Montesquieu, 47. 45. Burton Stein, “State Formation and Economy Reconsidered, Part One,” Modern Asian Studies 19, no. 3 (1985): 387–413. 46. Ranajit Guha, A Rule of Property for Bengal (Paris, 1963), 25. 47. The translation went through twelve editions between 1776 and 1794. For details see D. D. Irvine, “The Abbe Raynal and British Humanitarianism,” Journal of Modern History 3 (1931): 564–77. 48. Robert Orme, “General Idea of the Government and People of Indostan,” in Historical Fragments of the Mogul Empire (London, 1782); Alexander Dow, The History of Hindostan, To which are Prefixed A Dissertation on the Origin and Nature of Despotism in Hindostan, vol. 3 (London, 1772; reprint: Delhi, 1973). 49. Orme, “General Idea,” 405–6. 50. Ibid., 437. 51. Ibid., 438–39. 52. Ibid., 441. 53. Ibid., 454. 54. Dow, History of Hindostan, vii. 55. Ibid., xxi, emphasis added. 56. Ibid., xxii. 57. Ibid., xvi. 58. Ibid., xiii. 59. Malek Alloula, The Colonial Harem (Minneapolis: University of Minnesota Press, 1986), 68. This discourse, of course, does not begin with Dow. Some exemplary precedents would include Montesquieu’s Persian Letters (1721) (trans. C. J. Betts [Harmondsworth: Penguin, 1973]). 60. Dow, History of Hindostan, xiv. 61. Ibid., xx. 62. Lord Cornwallis, “Letter,” in Readings in the Constitutional History of India, ed. Desika Char (Delhi: Oxford University Press, 1983), 124. 63. John Stuart Mill, Considerations on Representative Government (New York: Prometheus, 1991), 15. 64. The classic and still the best account of this debate is Eric Stokes’s The English Utilitarians and India.

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65. C. A. Bayly, Indian Society and the Making of the British Empire (Cambridge: Cambridge University Press, 1988), 120. 66. Stokes, English Utilitarians, 20. 67. Ibid., 153. The full scope of this debate is beyond this chapter, but is developed in Stokes, 150–82. 68. See Madras section in appendix A. Also see W. H. Morley, The Administration of Justice in British India (1858; reprint, Delhi, 1976), 127. 69. Report in Readings in the Constitutional History of India, 178. 70. Letter in Readings in the Constitutional History of India, 179. 71. John Malcolm, “Minute on the Revenue and Judicial Administration of the Southern Marahatta Country” (Bombay, 23 April 1829). I.O.R. Mss. Eur. D. 640, no. 80. 72. Ibid. 73. Minutes of Evidence Before the Select Committee on the Affairs of the East India Company [IV Judicial] 1831–1832, Appendix 4, Irish University Press Series of British Parliamentary Papers, Colonies East India 10 (Shannon, 1970), 516. 74. Ibid., 518. 75. Ibid., 518–19. 76. Stokes, English Utilitarians, xiii. 77. James Fitzjames Stephen, A Life of the Earl of Mayo, vol. 2 (London, 1875), 161. 78. Readings in the Constitutional History of India, 184. 79. Quoted in Whitley Stokes, “General Introduction,” The Anglo-Indian Codes, vol. 1 (London, 1887), x. 80. A Penal Code Prepared by the Indian Law Commissioners (London, 1838), i. 81. For a comprehensive discussion of Macaulay’s role in the history of modern legal codification, and of his relation to Livingstone’s Code for Louisiana, see Sanford Kadish, “Codifiers of the Criminal Law: Weschler’s Predecessors,” Columbia Law Review 78, no. 5 (June 1978): 1098–1144. 82. Kadish, “Codifiers of the Criminal Law,” 1112. 83. Penal Code, v. 84. Ibid., i. 85. For details see M. Ramajois, Legal and Constitutional History of India, vol. 3 (Bombay, 1984), 67. 86. Quoted in Whitley Stokes, The Anglo-Indian Codes, vol. 1, xix. 87. Minutes of Evidence before the Select Committee on the Affairs of the East India Company [IV Judicial] 1831–1832, Irish University Press Series of British Parliamentary Papers, Colonies East India 10 (Shannon, 1970), 83. 88. Ibid., 84.

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89. Sir Erskine Perry, Letter to Lord Campbell Lord Chief Justice of England on Reforms in the Common Law, With a Letter to the Government of India on the Same Subject (London: James Ridgway, 1850), 44. 90. Penal Code, vii. 91. James A. Colaiaco, James Fitzjames Stephen and the Crisis of Victorian Thought (London: Macmillan, 1983), ix. 92. Quoted in Colaiaco, James Fitzjames Stephen, 47. 93. Stephen, Life of the Earl of Mayo, 172. 94. James Fitzjames Stephen, History of the Criminal Law of England, vol. 3 (London, 1883), 292. 95. Ibid., 293. 96. Ibid., 167. Chapter 3 1. J. H. Baker, An Introduction to English Legal History, 3d ed. (London: Butterworths, 1990), 168. 2. William Blackstone, Commentaries on the Laws of England, 4 vols. [1765–69] (Chicago: University of Chicago Press, 1979), 3:129. 3. Edward Jenks, “The Story of Habeas Corpus,” Law Quarterly Review 69 (January 1902): 65. 4. “R. v. Lord Warden of the Cinque Ports,” in Baker, English Legal History, 168. 5. William Forsyth, Cases and Opinions on Constitutional Law (London: Steven and Hayes, 1869), 452. 6. “R. v. Lord Warden of the Cinque Ports.” 7. R. J. Sharpe, The Law of Habeas Corpus (Oxford: Clarendon Press, 1976), 90. 8. Michel Foucault, Power/Knowledge, ed. Colin Gordon (New York: Pantheon, 1980), 98. 9. For an excellent sample of this scholarship, see the collected essays in Identities, Politics, and Rights, ed. Austin Sarat and Thomas R. Kearns (Ann Arbor: University of Michigan Press, 1997). 10. Neal Milner, “The Denigration of Rights and the Persistence of Rights Talk: A Cultural Portrait,” Law and Social Inquiry 14 (1989): 634. 11. Thus Alan Hunt and Gary Wickham have argued that Foucault’s argument produces the “effect of locating modern discourses of ‘rights’ (whether of private rights or human rights) as synonymous with the imperative notion of ‘right’ of the juridical monarch.” See Foucault and Law (London: Pluto Press, 1994), 45. 12. Jenks, “The Story of Habeas Corpus,” 64.

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13. F. W. Maitland, The Constitutional History of England (Cambridge: Cambridge University Press, 1908), 538. 14. As Maitland points out, while the Petition of Right reiterated the “Nullus liber homo” clause of the Magna Carta, it was the Habeas Corpus Act of 1672 (31 Car. II, c. 2) that consolidated the writ as a right of the subject. F. W. Maitland, Constitutional History of England, 313–15. The Petition of Right, 3 Car. I, c. 1, granted by Charles I in 1628, restricted the Crown’s interference in the judicial process to times of war. The Habeas Corpus Act of 1679, 31 Car. II, c. 2, made the writ available to any person committed of any crime except treason or a felony plainly expressed in the warrant, and made the penalties for refusing the writ monetary damages that the prisoner could sue for, thus precluding the possibility of royal protection or pardon. 15. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Stanford: Stanford University Press, 1998), 124. 16. John Comaroff, “The Discourse of Rights in Colonial South Africa: Subjectivity, Sovereignty, Modernity,” in Identities, Politics, and Rights, ed. Austin Sarat and Thomas R. Kearns (Ann Arbor: University of Michigan Press, 1997), 193–236. 17. David A. Washbrook, “Law, State, and Agrarian Society in Colonial India,” Modern Asian Studies 15, no. 3 (1981): 649–72. 18. Washbrook, “Law, State, and Agrarian Society,” 658–59. 19. Martin Shapiro, Courts: A Comparative and Political Analysis (Chicago: University of Chicago Press, 1981). 20. Dutton v. Howell, 1 E.R. 17 (H.L., 1693). Scire Facias: writ to move other party to show why judgment should not hold and be executed. 21. Ibid., 19. 22. Ibid., 23. 23. Ibid., 19. 24. Ibid., 24. 25. Mostyn v. Fabrigas, 98 E.R. 1021 (K.B., 1774). 26. Ibid., 1023. 27. Ibid. 28. Ibid., 1025. 29. Ibid. 30. Ibid., 1027. 31. The dictum that the governor could only be tried in the king’s courts was later overturned in Hill v. Bigge, 13 E.R. 189 (H.L., 1841). The Lords upheld the decision of a court of first instance in Trinidad against the lieutenant-governor, Sir George Hill, in a matter of a bond owed to jewelers, Bigge et al., acquired in England. Officers of the Crown in the colonies, it was held, could be tried in the local courts. It is not possible to discuss here the full doctrinal devel-

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opment of the dictum. For later cases see Comphania de Mocambique v. British South Africa Company [1892], 2 Q.B. 361; Adam v. British and Foreign Steamship Company [1898], 2 Q.B. 432. 32. Mostyn v. Fabrigas, 1028–29. 33. The Indian High Courts Act, 6 August 1861. 24 and 25 Vict., c. 104. I.O.R. V/1/184. 34. Impey to Governor-General and Council, 25 May 1775. British Museum Add. Mss. 16,265, 46–47. 35. Information on the earlier cases is often drawn from manuscript notes, and thus it is difficult to reconstruct the entire reasoning. Impey mentions the case in a letter to Lord Rochford, 23 November 1775. British Museum Add. Mss. 16,265, 120. Also see B. N. Pandey, The Introduction of English Law into India: The Career of Elijah Impey in Bengal, 1774–1783 (London: Asia Publishing House, 1967), 112. 36. Impey to the Lord Chancellor, “Observations on the Administration of Justice in Bengal,” 20 September 1776. British Museum Add. Mss. 16,265, 235. 37. Blackstone, Commentaries, 3:131. 38. Rex v. Warren Hastings and Others involved a request for a writ of mandamus to be directed to the governor-general, to restore one John Stewart to his position of judge advocate-general and judge martial, claiming that the governor-general had no authority to cancel an appointment made by the Court of Directors in England. The court was divided in its decision. Impey and Chambers argued that the court had no authority to issue a writ of mandamus and that its authority to issue writs of habeas was confined to the judges severally, and Lemaistre, J. and Hyde, J. arguing in dissent that the court had the power to issue mandamus by implication. Rex v. Warren Hastings and Others [1775], in T. C. Morton, Decisions of the Supreme Court of Judicature at Fort William in Bengal (Calcutta, 1841): 206–8. Although the court was split in this decision, it was unanimous in its decision in Rex v. Ramgovind Mitter and Others [1781], Morton, Decisions of the Supreme Court, 208, in which it concluded that the power to issue writs of habeas was only held severally by the judges and not by the court as a court. For a later development of this principle, see Eshugbayi (Eleko) v. Officer Administering the Government of Nigeria [1928] A.C. 459, where the Judicial Committee of the Privy Council held that in the matter of habeas petitions each judge was to be considered a separate tribunal, and thus a petitioner could address judges of the same court successively, even if the basis for the petition remained unchanged. 39. The case is discussed at some length in Pandey, Introduction of English Law into India, 176–85. 40. Both petitions were read out in Parliament and debated. The Parliamentary History of England from the Earliest Period to the Year 1803, vol. 21, 1162–1207.

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The Touchet petition was the result of Creasey’s case, in which James Creasey was found guilty for the battery and false imprisonment of two native carpenters. In a letter to Thurlow, 26 March 1779, Impey insisted that civil trials in India could not be held by jury because submitting a cause of Indians to the judgment of their conquerors would add “insult to injury.” As for the resentments caused by the case, Impey wrote: “So little conversant are the English here with justice that every cause decided against a British subject creates a personal enemy to the judge.” British Museum Add. Mss. 16,259. 41. British Acts, I.O.R. V/1/79. 42. 21 Geo. III, c. 70, s. 8, emphasis added. 43. The information on these early cases is drawn from William H. Morley, An Analytical Digest of all The reported Cases Decided in the Supreme Court of Judicature in India, 2 vols. (Calcutta, 1850). Hereafter cited as Morley’s Digest with volume and page number following. The King v. Monisee and Others [1810], Morley’s Digest I, 278. 44. Rex v. Goculnauth Mullick [1824], Morton, Decisions of the Supreme Court, 220. 45. In the Matter of Sreenauth Roy [1840], Morton, Decisions of the Supreme Court, 226 46. Buddinauth Ghosaul v. J.A. Devrall [1829], Morton, Decisions of the Supreme Court, 184. 47. The case is Rajah Mohinder Deb Rai v. Ramcanai Cur [1794], Morley’s Digest, I, 277. 48. Muddoosooden Sandell v. Chumpuck Mollah Dabey [1815], Morley’s Digest, II, 29. 49. The King v. Nagapen [1814], Morley’s Digest, I, 278. 50. The King v. DeUrilla [1814], Morley’s Digest, I, 278. 51. Sir Erskine Perry, Cases Illustrative of Oriental Life, and the Application of English Law to India (London, 1853). 52. Ibid., 2. 53. Regina v. Shaikn Boodin, Perry, Cases Illustrative of Oriental Life, 434. 54. Ibid., 450. 55. For historical background, see Thomas Metcalf, Ideologies of the Raj (Cambridge: Cambridge University Press, 1994), 43–65. 56. Regulation III, 7 April 1818. I.O.R. V/8/19. 57. Act III, 23 January 1858. India Acts 1858. I.O.R. V/8/36. Section 1 of the act repealed Regulation XXV of the Bombay Code, which outlined arrest according to British law. Similar acts of 1858 include Act X of 1858, “An Act for Confiscation of Villages involved in Rebellion,” I.O.R. V/8/36, and Act XXVI of 1858, “An Act for further Provisions for the Trial and Punishment of Offences Against the State,” I.O.R. V/8/36.

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Notes to Pages 90–99

58. The Indian Councils Act, 1 August 1861. 24 & 25 Vict., c. 67, s. 22. I.O.R. V/1/184. 59. The Queen v. Vaughn and Another, In the Matter of S.M. Ganesh Sundari Debi, alias Mani[1870], 5 B.L.R. 418. 60. In Re Mani [1870], 5 B.L.R. 418, 419. 61. For a detailed study of the Samaj, see David Kopf, The Brahmo Samaj and the Shaping of the Modern Indian Mind (Princeton: Princeton University Press, 1979). 62. Comaroff, “The Discourse of Rights in Colonial South Africa.” 63. In Re Mani, 427. 64. Ibid., 432. 65. Ibid., 437. 66. In the Matter of Ameer Khan [1870], 6 B.L.R. (Bengal Law Reports), 392. 67. Ibid., 398. 68. Ibid., 407. The argument refers to cases such as Attorney General v. Stewart, 2 Merivale 143; 35 E.R. 895 (Ch., 1816–1817), in which the court held that the Statute of Mortmain was not part of the property law of the colony. 69. In the Matter of Ameer Khan, 414. 70. Ibid., 418–23. 71. Ibid., 452–53. 72. Ibid., 454–55. 73. Ibid., 455. 74. Walter Benjamin, Reflections, trans. Edmund Jephcott, ed. and with an introduction by Peter Demetz (New York: Schocken, 1986). 75. Act X of 1872, s. 82. India Acts 1872. I.O.R. V/8/43. Act X of 1875, s. 148. India Acts 1875. I.O.R. V/8/46. 76. The Queen v. Burah [1878], 5 I.A., 179. 77. Code of Criminal Procedure, Act V of 1898, c. XXXVII, s. 3. India Acts 1898. I.O.R. V/18/62. 78. In the Matter of Rudolf Stallmann [1911], I.L.R. 39 Cal., 164. 79. Ibid., 174–75. 80. Ibid., 186. 81. Legal Adviser’s Records. I.O.R. L/L/6/6, no. 319. 82. Ibid. Chapter 4 1. Great Britain, Parliament, Report of the Committee Appointed by the Government of India To Investigate the Disturbances in the Punjab, Etc., Hunter Committee Report, Cmd. 681 (1920), 28–29. The official investigative report, named after its president, Lord Hunter, the former Solicitor-General of Scotland, was sub-

Notes to Pages 99–103

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mitted in 1920. The committee, which consisted of five British and three Indian members, split along racial lines in its conclusions, submitting a Majority and a Minority Report. 2. Hunter Committee Majority Report, 29. Also see Raja Ram, The Jallianwala Bagh Massacre: A Premeditated Plan (Chandigarh: Punjab University Publications, 1969), 86. 3. Hunter Committee Majority Report, 29. 4. There are a number of studies of the massacre that have been drawn upon here. For narrative detail, see V. N. Datta, Jallianwala Bagh (Ludhiana: Lyall Book Depot, 1969); Raja Ram, The Jallianwala Bagh Massacre: A Premeditated Plan, which argues (not always convincingly) that the massacre was a premeditated design by authorities in order to overwhelm the emerging nationalist movement; Arthur Swinson, Six Minutes to Sunset (London: Peter Davies, 1964). 5. Alfred Draper, Amritsar, The Massacre That Ended the Raj (Delhi: Macmillan, 1981). 6. Quoted in Derek Sayer, “British Reaction to the Amritsar Massacre, 1919–1920,” Past and Present 131 (May 1991): 131. 7. Report of General Dyer, 25 August 1919, to General Staff 16th Division. Reiterated in Great Britain, Parliament, Army. Disturbances in the Punjab. Statement by Brig.-General R. E. H. Dyer, C.B., Cmd. 771 (1920), 10. 8. Hunter Committee Majority Report, 30. 9. Leon Radzinowicz, A History of English Criminal Law and Its Administration from 1750, vol. 4 (London: Stevens and Sons, 1968), 143. Although Radzinowicz is wrong here, chapter 4 of his work does contain one of the more comprehensive surveys of official responses to mobs and riots from the posse comitatus to the reform of the metropolitan police. Charles Townshend more moderately suggests that although martial law was a known category in English law, it had been in disuse from the seventeenth century onward and was thus undeveloped in legal thinking. See “Martial Law: Legal and Administrative Problems of Civil Emergency in Britain and the Empire, 1800–1940,” Historical Journal 25, no. 1 (1982): 167–68. 10. Sir William Searle Holdsworth, “Martial Law Historically Considered,” in Essays in Law and History, ed. A. L. Goodhart and H. G. Hanbury (Oxford: Clarendon Press, 1946). 11. H. Earle Richards, “Martial Law,” Law Quarterly Review 18 (1902): 136. The notion of necessity has a complicated legal history. The famous ShipMoney case of 1637, Rex v. Hampden, consolidated the Crown’s right to confiscate property during war as a general rule of the common law. As Earle Richards points out, even Hampden’s counsel could not deny the justified suspension of ordinary law in moments of necessity. See “Martial Law,” 135–36. The maxim salus populi suprema est lex was often juxtaposed with the seemingly

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similar salus republicae est suprema lex and given the authority of essential law. This was reiterated down into the twentieth century. In Re an Arbitration between Shipton, Anderson, and Co. and Harrison Brothers and Co, the court considered whether the lawful requisition of a parcel of wheat by the government excused the seller from the performance of the contract. In that case Darling, J. insisted: “The subject-matter of this contract has been seized by the state acting for the general good. Salus populi suprema lex is a good maxim and the enforcement of that essential law gives no right of action to whomsoever may be injured by it.” [1915] 3 K.B. 676, esp. 684. This essential legality of the maxim was again affirmed by Lord Moulton in Attorney-General v. De Keyser’s Royal Hotel [1920], A.C. 508. Ultimately, it was the idea of a royal prerogative existing in a governor-general appointed under a colonial constitution that was used by the Supreme Court to justify the declaration of emergency in Pakistan in 1955, which we shall discuss in the next chapter. 12. The Petition of Right, 3 Car. I, c. 1, granted by Charles I in 1628 restricted the Crown’s interference in the judicial process to times of war. It specifically restricted the use of royal commissions, demanding that “the aforesaid Commissions for proceeding by Martial Law may be revoked and annulled . . . lest by colour of them any of your Majesty’s subjects be destroyed or put to death contrary to the laws and franchise of the land.” For an extract of the Petition of Right, see appendix 4 in C. M. Clode, The Military Forces of the Crown: Their Administration and Government, vol. 1 (London: John Murray, 1869). As Holdsworth points out, however, the precise meaning of this restriction was opaque from the very beginning, and this opacity had lasted down to the nineteenth century. For example, what exactly defined a “time of Peace”? Relatedly, was the Crown allowed to assert martial law in “expectancy of danger”? The somewhat settled answer to these questions was that if the courts could physically sit, it was a time of peace; and that only actual and imminent danger justified the use of martial law. See Holdsworth, “Martial Law Historically Considered,” 7–15. 13. See Holdsworth, “Martial Law Historically Considered,” 19. This tendency to insist that martial law has no place in the confines of law proper is found in U.S. definitions as well. The Corpus Juris Secundum, vol. 93, no. 40, points out that “in strictness, it is not law at all, but a cessation of municipal law, as an incident of jus belli, and because of paramount necessity.” 14. A. V. Dicey, Introduction to the Study of the Law of the Constitution, 10th ed. (1885; reprint, London: Macmillan, 1961), 295. Dicey’s insistence that this is proof of the supremacy of a rule of law is partly the result of his definition of such rule. In addition to the features of an absence of discretion and equality under the law, he includes the notion that liberties are the result of specific court cases that shape the “unwritten” constitution and are thus the source and not the result of the constitution. 15. Dicey, Law of the Constitution, 295.

Notes to Pages 103–7

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16. Ibid., 298. 17. Ibid., 301. 18. Blackstone, Commentaries, 4:147. 19. The posse comitatus was called for during the Luddite riots of 1811–12, the Bristol riots of 1831, the agricultural uprisings in 1832, and even the Chartist uprisings in 1839. See Radzinowicz, A History of English Criminal Law and Its Administration from 1750, vol. 4, 106–8. For the Bristol case, see the notes to Rex v. Pinney, 172 E.R. 963 (Nisi Prius, 1832). 20. Radzinowicz, A History of English Criminal Law, 114. 21. The statute enacted that if twelve or more persons were unlawfully assembled, a magistrate was required to read the proclamation to disperse and after an hour had elapsed was to use force if necessary. The act also contained an indemnifying clause in case any fatalities or trespasses occurred. Blackstone, Commentaries, 4:142–43, also lists the various statutes with a similar purpose prior to the Riot Act. 22. Rex v. Kennet, 172 E.R. 976 (Nisi Prius, 1781), 984. 23. Rex v. Pinney, 172 E.R. 962, 971, emphasis added. 24. In his charge to the grand jury, Justice Blackburn used the calculus of “the exact line between excess and failure of duty” in order to determine the abuse of authority under martial law. The Queen v. Edward John Eyre (London: Chapman and Hall, and Stevens and Sons, 1868), 56. 25. Burdett v. Abbott, 104 E.R. 501 (K.B. 1811). 26. Charles J. Napier, C.B., Remarks on Military Law and the Punishment of Flogging (London: T. and W. Boone, 1837), 47. 27. Ibid., 43. 28. Ibid., 46. 29. Charles Townshend, “Military Force and Civil Authority in the United Kingdom, 1914–1921,” Journal of British Studies 28 (July 1989): 264. 30. Report of the Select Committee on Employment of Military in Cases of Disturbance, 1908, Parliamentary Papers, 7:365. 31. For Frederick Pollock, an expert on the common law, martial law was not to be considered an issue of prerogative but a rule of the common law to meet conditions of necessity, whether those conditions obtained in the domestic realm or the dominions. The necessity would have to be justified in each case, and if there was any doubt only the civil courts could finally decide. Martial law could not entirely eclipse that jurisdictional power. See “What Is Martial Law?” Law Quarterly Review 18 (1902): 152–58. 32. Walter Benjamin, “Critique of Violence,” in Reflections, ed. Peter Demetz (New York: Schocken Books, 1986), 281. 33. Notes to Rex v. Pinney. 172 E.R. 962, esp. 966. 34. See, for example, John Brewer, The Sinews of Power: War, Money, and the English State, 1688–1783 (Cambridge: Harvard University Press, 1990).

170

Notes to Pages 108–10

35. Townshend, “Martial Law,” 195. 36. This list with some extracts of debates on each case is available in Clode, “Recent Instances of Martial Law,” in The Military Forces of the Crown, vol. 2, 481. It may be noted that India during the revolt of 1857 is not included here, and that is because the reprisals there were seen as beyond any law, within an altogether different logic of massacre and revenge. That particular instance of rebellion and revenge did, however, leave its mark on the English imagination. The infamous case of Governor Eyre in Jamaica in 1865 was seen by critics at the time as an extreme response conditioned by memories of 1857, which according to Frederic Harrison had unleashed “the tiger in our race.” See Geoffrey Dutton, chap. 19 in The Hero as Murderer. 37. Henry Hallam, The Constitutional History of England, 4th ed. (London, 1842). Quoted in Townshend, “Martial Law,” 170. 38. Quoted in Clode, “Recent Instances of Martial Law,” vol. 2, 484. 39. Ibid., 486. 40. There is a substantial literature on this subject. The administrative documents are to be found in the Jamaica Rebellion File: PRO (Public Record Office), W.O. 32 6235. Most documents are reprinted to construct a narrative history in W. F. Finlason, A History of the Jamaica Case Founded Upon Official or Authentic Documents (London: Chapman and Hall, 1868). Some of the main secondary accounts include Bernard Semmel’s more critical The Governor Eyre Controversy (London: Macgibbon and Kee, 1962) and Geoffrey Dutton’s The Hero as Murderer (London: Collins, 1967), which is somewhat slanted toward Eyre. For a discussion of the key intellectual figures in the controversy, see Catherine Hall, “The Economy of Intellectual Prestige: Thomas Carlyle, John Stuart Mill, and the Case of Governor Eyre,” Cultural Critique 12 (spring 1989): 167–96. 41. Although there is no evidence that there was an intention to expel whites from the island, the events in Haiti in the previous year had convinced the majority of the white population of such an outcome. Additionally, Eyre seems to have had a personal suspicion of Gordon, whom he regarded as an obeah or magic man. See Dutton, The Hero as Murderer, 286. 42. The legal instruments and proclamations are reprinted in Clode, “Recent Instances of Martial Law,” vol. 2, 491. 43. It is difficult to exaggerate the intensity of violence, the absolute cruelty with which such an “official response” was carried out. One Capt. Ford gives us a “typical picture”: “They shot about 160 people on their march from Port Antonio to Manchioneal, hanged seven in Manchioneal, and shot three on their way here. This is a typical picture of martial law; the soldiers enjoy it, the inhabitants have to dread it; if they run on their approach, they are shot for running away.” Quoted in Dutton, The Hero as Murderer, 295. 44. Ibid., 328.

Notes to Pages 111–16

171

45. Clode, “Recent Instances of Martial Law,” vol. 2, 492–93. 46. Dutton, The Hero as Murderer, 293. 47. Cockburn’s charge was later published by him. Sir Alexander Cockburn, Charge of the Lord Chief Justice of England to the Grand Jury at the Central Criminal Court, in the Case of The Queen v. Nelson and Brand (London, 1867). The charge is also presented with a detailed rebuttal in Finlason, History of the Jamaica Case. 48. In addition to his History of the Jamaica Case, and his publication of the Report of the Case of The Queen v. Edward John Eyre (London: Chapman and Hall, 1868), Finlason published an earlier Treatise Upon Martial Law (London: Chapman and Hall, 1866), and the later and somewhat repetitive Commentaries Upon Martial Law (London: Chapman and Hall, 1867). 49. Finlason, “Charge of the Lord Chief Justice,” in History of the Jamaica Case, 435. 50. Ibid., 436. At another moment in the text, Finlason makes the intriguing observation that an English standard of emergency could not apply to the colonies “because Englishmen never rise in rebellion, and never go beyond a riot.” History of the Jamaica Case, 460. 51. Ibid., 440. 52. Ibid., 474–75. 53. Ibid., 443. 54. Ibid., 459. 55. Ibid., 517. 56. John Stuart Mill, Autobiography, quoted in Dutton, The Hero as Murderer, 374. 57. T. Carlyle, “Shooting Niagara: And After?” quoted in Townshend, “Martial Law,” 173. 58. Hans Kelsen, General Theory of Law and State, trans. Anders Wedberg (Cambridge: Harvard University Press, 1946), 177. 59. Circular Despatch to Colonial Governors, Dated 30th January 1867, On the Subject of Martial Law. House of Commons, Parliamentary Papers [1867], vol. 49, 395, emphasis added. 60. Ibid. 61. Ibid. 62. This was the general consensus on the meaning of “peacetime” in the Petition of Right. See chap. 4, note 12. Equally it was a rule articulated by Dicey and conceded by most others; see Townshend, “Martial Law and Civil Emergency,” 182. 63. Marais v. General Officer Commanding [1902], A.C 109. For Dicey’s own interpretation of this case, see Dicey, Law of the Constitution, 291. 64. Marais v. General Officer Commanding, 114.

172

Notes to Pages 117–25

65. Ibid., 115. 66. Frederick Pollock, “What Is Martial Law?” Law Quarterly Review 18 (1902): 153. 67. H. Earle Richards, “Martial Law,” Law Quarterly Review 18 (1902): 140–41, emphasis added. 68. Ibid., 142. 69. John Stuart Mill, Considerations on Representative Government (New York: Prometheus, 1991). 70. The text of Macaulay’s Minute may be found in Philip Curtin, Imperialism (New York: Harper Row, 1971), 190. Also see Homi Bhabha, “Sly Civility,” in The Location of Culture (New York: Routledge, 1994). 71. Mill, Representative Government, 16. 72. Ibid., 29. 73. Ibid., 49. 74. Hart, Concept of Law, 91. 75. Ibid., 75. 76. Stanley Fish, “Force,” in Doing What Comes Naturally (Durham: Duke University Press, 1989), 504. 77. Hart, Concept of Law, 21. 78. Robert Cover, “Violence and the Word,” in Narrative, Violence, and the Law: The Essays of Robert Cover, ed. Martha Minow, Michael Ryan, and Austin Sarat (Ann Arbor: University of Michigan Press, 1995), 203. 79. Benjamin, “Critique of Violence.” 80. Peter Demetz, “Introduction,” in Reflections, xxvi. 81. Benjamin, “Critique of Violence,” 278. 82. For the important subtleties of the German mittel and its deployment in the essay, see Beatrice Hanssen, “On the Politics of Pure Means: Benjamin, Arendt, and Foucault,” in Violence, Identity, and Self-Determination, ed. H. De Vries and S. Weber (Palo Alto: Stanford University Press, 1997). 83. Benjamin, “Critique of Violence,” 286. 84. Ibid., 294. 85. Jacques Derrida, “Force of Law: The Mystical Foundation of Authority,” in Deconstruction and the Possibility of Justice, ed. D. Carlson, D. Cornell, and M. Rosenfeld (New York: Routledge, 1992), 43. 86. Benjamin, “Critique of Violence,” 294. 87. Hunter Committee Minority Report, 115. 88. Ibid., 116. 89. Statement by Brig.-General R. E. H. Dyer, C.B., Cmd. 771, 11. 90. Dispatch from the Secretary of State for India, to His Excellency the Right Honourable the Governor-General in Council, No. 108 (Public), dated 26th May, 1920. Great Britain, Parliament, Correspondence Between the Govern-

Notes to Pages 125–38

173

ment of India and the Secretary of State for India on the Report of Lord Hunter’s Committee, Cmd. 705 [1920], 28. 91. Rex v. Pinney, 172 E.R. 962; Charles J. Napier, C.B., Remarks on Military Law and the Punishment of Flogging (London: T. and W. Boone, 1837). 92. For more details on the epidemic and rising prices, see Raja Ram, The Jallianwala Bagh Massacre, 21; for the official understanding of the effects of conscription, see Hunter Committee Majority Report, 58. 93. Great Britain, Parliament, Report of the Committee Appointed to Investigate Revolutionary Conspiracies in India, Cmd. 9190 [1919]. 94. The reforms put together by the secretary of state for India, Edwin Montagu, and the viceroy, Lord Chelmsford, emphasized the gradual increase in Indian participation in government, starting at the provincial level. The system, called dyarchy, revolved around four recommendations: popular control in local bodies; “the provinces are the domain in which earlier steps towards the progressive realization of responsible government should be taken”; the enlargement of the Indian Legislative Council; relaxing the control of Parliament and the secretary of state over the government of India and the provincial governments. See S. V. Desika Char, ed., Readings in the Constitutional History of India, 1757–1947 (Delhi: Oxford University Press, 1983), 461. 95. Hunter Committee Majority Report, 59. 96. Ibid., 63. 97. “Letter from the Government of India, Home Department (Political), to the Right Honourable Edwin Montagu, His Majesty’s Secretary of State for India, No. 2, dated Simla, 3rd May, 1920,” in Great Britain, Parliament, Correspondence Between the Government of India and the Secretary of State for India on the Report of Lord Hunter’s Committee, Cmd. 705 [1920], 22. 98. See chap. 2, notes 71 and 72. 99. See chap. 4, note 33. 100. Hunter Committee Minority Report, 119. 101. Ibid., 136. 102. Ibid., 123. 103. Hunter Committee Majority Report, 67. 104. Ibid., 69. Conclusion 1. Chatterjee, Nation and Its Fragments: Colonial and Postcolonial Histories (Princeton: Princeton University Press, 1993), 204. 2. Ibid., 205. 3. The Constitution of the Islamic Republic of Pakistan, 1973, commentary and introduction by Emmanuel Zaffar (Lahore: Irfan Law Book House, 1992), 17.

174

Notes to Pages 138–44

4. Ibid., 6–7. 5. K. Lipstein, “The Reception of Western Law in India,” International Social Science Bulletin 9 (1957), 85. 6. Ibid., 95. 7. Lloyd I. Rudolph and Susanne Hoeber Rudolph, In Pursuit of Lakshmi: The Political Economy of the Indian State (Chicago and London: University of Chicago Press, 1987), 105–7. 8. Ibid., 106. 9. Ibid., 107. 10. A. W. B. Simpson, “Round Up the Usual Suspects: The Legacy of British Colonialism and the European Convention on Human Rights,” Loyola Law Review 41 (1996): 629–711, 658. 11. Ibid. 12. The literature on globalization and the changing powers of the nationstate is a burgeoning one. For a popular account see Thomas L. Friedman, The Lexus and the Olive Tree (New York: Farrar, Straus and Giroux, 1999). For a more academic account that is nuanced and does not exaggerate or underestimate the process of globalization see Saskia Sassen, Globalization and Its Discontents: Essays on the New Mobility of People and Money (New York: New Press, 1998). On the changing role of the nation-state in particular, see Masao Miyoshi, “A Borderless World? From Colonialism to Transnationalism and the Decline of the Nation-State,” Critical Inquiry 19 (summer 1993): 726–51. 13. See Saskia Sassen, Losing Control? Sovereignty in an Age of Globalization (New York: Columbia University Press, 1996), 8–9. 14. Ibid., 15–16. 15. United Nations Universal Declaration of Human Rights, in The Human Rights Reader, ed. Micheline Ishay (New York: Routledge, 1997), 407. 16. Norman Marsh, “The Rule of Law as a Supra-National Concept,” in Oxford Essays in Jurisprudence, ed. A. G. Guest (Oxford: Oxford University Press, 1961). 17. The Commission on Global Governance, Our Global Neighbourhood (Oxford: Oxford University Press, 1995). 18. Eve Darian-Smith and Peter Fitzpatrick, eds., Laws of the Postcolonial (Ann Arbor: University of Michigan Press, 1999), 5. 19. Sassen, Globalization and Its Discontents, xxvii. 20. Ibid., 199. 21. Michael Hardt and Antonio Negri, Empire (Cambridge: Harvard University Press, 2000). 22. Ibid., 55. 23. Ibid., 18. 24. Ibid., 19.

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Index

Absolutist powers, 17, 26–27, 41–42, 44, 47 Act III, 89 Act X of 1872, 96 Act X of 1875, 96 Adalat, Sadr Diwani, 30, 82 Adalat, Sadr Nizamat, 79, 82 Africa, 25, 36, 113, 114 Agamben, Giorgio, 20–21, 72 Alloula, Malek, 54 Althusser, Louis, 46–47, 49 American Constitution, 44 Amritsar massacre, 32, 101, 118–31, 136. See also Massacres Amritsar: Massacre That Ended the Raj (Draper), 100 Ancient Law (Maine), 36 Anderson, Perry, 159n. 58 Anquetil-Duperron, Abraham, 46 Anthropology, 5, 142 Aristotle, 46 Arraval of St. Philips, 77 Asia, 51, 133 Asiatic Empire, 51 Austin, John, 12–13, 35–37 Baisakhi festival, 99 Baker, J. H., 69 Balibar, Etienne, 140

Balkans, 144 Baltics, 24 Barbados, 75, 76, 108 Barwell, Richard, 80 Bayly, Christopher, 57, 64 Belfast, 106 Belgium, 125 Bendersky, Joseph, 15 Bengal, 28–29, 56, 57; and habeas corpus, 72, 79, 83, 88–91; Regulation, 7, 89 Benjamin, Walter, 33, 95; and martial law, 101, 107, 122–24, 129; on violence, 122–24, 129 Bentham, Jeremy, 35–36, 40, 58 Bentinck, William, 58 Bhabha, Homi, 119 Black Act, 10, 30, 135 Blackstone, William, 69, 104 Boer War, 116 Bogle, Paul, 110 Bombay, 26, 57–59, 65, 80, 85–88 “Borderless world,” notion of, 141, 143 Boycotts, 29 Bracton, Henry de, 2 Brand, Lieutenant, 111–12, 114–15 Brewer, John, 3–4, 108 Bright, John, 110

185

186 Bristol, 105, 125 British Constitution, 23–24, 75, 94, 103, 106, 108–9; and the colonial concept of law, 43; and corruption, 24; and habeas corpus, 79; and the Special Reference, 3 Brougham, Henry Peter, 109 Bureaucracy, 36, 39 Burke, Edmund, 24 “But for” clause, 16 Buxton, Charles, 110 Calcutta, 30, 50–51; and Britain’s increasing connection with India, 26; and habeas corpus, 73– 75, 79–85, 90, 92, 96 Calvin, Robert, 45–46 Calvin’s Case, 24, 44–45, 78, 93 Cambridge School of Indian History, 31 Campbell v. Hall, 24, 46, 134, 159n. 27 Canada, 108 Cape of Good Hope, 108 Capital punishment, 111. See also Punishment Carlyle, Thomas, 114–15, 124 Cases Illustrative of Oriental Life and the Application of English Law to India (Perry), 86 Caste, 88 Censuses, 39 Cephalonia, 108 Ceylon, 108 Channel Islands, 87 Charles I (king), 93, 168n. 12 Charter Act of 1813, 26, 57 Charter Act of 1833, 41, 57, 60 Chatterjee, Partha, 28–31, 137, 136 Chelmsford, Lord, 127–28, 137–38, 173n. 94 Chiapas rebellion, 143

Index Chomsky, Noam, 144 Christianity, 24, 45, 52, 54 Churchill, Winston, 100 Civil disobedience, 127 Civilization: evolution of, 120, 136; meaning of, revision in, 66; stages of, 120 Civil rights, 17, 142 Civil war, 22 Clapham Sect, 66 Clavering, John, 80 Cockburn, Alexander, 112–15 Code Napoleon, 63 Codes of Criminal Procedure, 68, 96, 97 Codification, 55–68 Coke, Edward, 22, 24; and the colonial concept of law, 44–46; and habeas corpus, 69–70, 93 Colaiaco, James, 66 Collège de France, 13 Colonialism, definition of, 22–32 Colonialism’s Culture (Thomas), 22 Comaroff, John, 73 Commentaries (Blackstone), 81 Commission on Global Governance, 141 Common law, 74 Concept of Law, The (Hart), 12–13, 35–37 Consent, age of, 90–91 Considerations on Representative Government (Mill), 56, 119 Constitutional Dictatorship (Rossiter), 17–19 Constitutions. See American Constitution; British Constitution; Weimar constitution Cornwallis, Lord, 56, 57 Coromandel, 26 Council of War, 110

Index Court of Common Pleas, 76 Court of Oyer and Terminer, 79 Courts (Shapiro), 73 Cover, Robert, 33, 122 Creasey, James, 165n. 40 Crime: and the colonial concept of law, 37, 53–54, 59–60; Dow on, 53–54; and habeas corpus, 80, 96. See also Criminal Procedure, Codes of Criminal Procedure, Codes of, 68, 96, 97 “Critique of Violence” (Benjamin), 122–23 Cuddalore, 26 Darian-Smith, Eve, 142 Darwin, Charles, 110 Death penalty. See Capital punishment; Punishment Deer killing, 10 Defense of India Act, 140 Defense of India Rules, 139 Defense of the Realm Acts, 17, 95 Delhi, 26, 58, 88 Demerera, 108, 109 Demetz, Peter, 122 Democracy, 25, 119; Hart on, 13; and Isonomia, notion of, 8; Montesquieu on, 47; and the rule of law, association of, 10; and the Weimar regime, 15; and World War II, 17 Depression, economic, 18 Derogation provisions, 17 Derrida, Jacques, 124 Despotism, 12, 25; Bentham on, 35; and the colonial concept of law, 35, 38, 47, 52–56, 61, 65–68; Dow on, 53; and fear, 47; and the “General Idea,” 51; and habeas corpus,

187 77–79; and martial law, 119; Orme on, 50–51, 54–56; and primitivism, 31; Stephen on, 5. See also Oriental despotism Dicey, Albert Venn, 8, 21–22, 103–4, 108, 139 Dictatorship, constitutional, 17–18 Difference, colonial, 29–30 Diktatur, Die (Schmitt), 19 Disciplinary society, shift toward, 39–40 Disobedience, 4–5, 127 “Dissertation concerning the Origin and Nature of Despotism in Hindostan” (Dow), 50, 52, 54 Diwan, 79 Dominance without Hegemony (Guha), 31 Doveton, Captain, 129 Dow, Alexander, 50, 52–53, 56–57 Draper, Alfred, 100 Dublin, 106 Duke of Wellington, 103, 130 Durkheim, Émile, 44 Dutton, Geoffrey, 111 Dutton, Richard, 75–77 Dutton v. Howell, 75 Dyer, Reginald E., 99–101, 125, 128–30, 136 East India Company, 9, 12, 26–27; and the Black Act, 30; and the colonial concept of law, 50– 51, 57, 59, 62; and habeas corpus, 74, 79, 81–82, 88; passage of sovereignty from, to the Crown, 43 Economics, 18–19, 57, 137; and globalization, 141; and monopolies, 26. See also Trade Elphinstone, Mountstuart, 57–59 Emergency, definition of, 16-22

188 Emergency Powers Bill. See Rowlatt Act Empire (Hardt and Negri), 143 Empress of India, 88 English Extradition Act, 96 Enlightenment, 28, 31, 32, 44 Eo instante, 45 Epistemology, 14 Ethnography, 50 Evangelicalism, 67 Evidence Act of 1872, 68 Ewald, François, 14 Exception, concept of, 20, 21 Exchequer Chamber, 75 Expansion of the Common Law, The (Pollock), 43 Expressive totality, the state as an, 49 Eyre, Edward John, 5, 105, 109–12, 115 Eyre Defense Committee, 110 Fabrigas, Anthony, 76 Fascism, 12, 17 Finlason, William Francis, 112–14 Fish, Stanley, 121 Fitzpatrick, Peter, 28, 31, 142 Foucault, Michel, 6, 12; on governmentality, 13–14, 26, 39, 61, 71; and habeas corpus, 71; on the juridical, 13; on modernity, 61; on power, 71; and Scott, 39, 40 France, 21, 125; absolutist monarchy in, 44, 46, 48; and Britain, rivalry between, 26; strikes in, 143; and World War II, 17 Francis, Philip, 80 Gandhi, Indira, 139 Gandhi, Mohandas, 126, 136 Garett, G. T., 38–39 Genealogy, 6, 32, 71, 102, 135

Index “General Idea,” notion of, 50, 51 “General Idea of the Government and People of Indostan” (Orme), 50, 51 George III (king), 92 Germany: and martial law, 125; Nazi, 15; and Notrecht, 20 Globalization, 133, 140–43, 174n. 12 Gordon, George William, 110–12 Gordon riots, 104 Government, three kinds of, 47. See also State Governmentality, 32, 71, 73, 85; and the colonial concept of law, 39, 40, 61; Foucault on, 13–14, 26, 39, 61, 71 Government of India Acts, 43, 138 Grant, J. P., 65 Gray, C. E., 61–62 Guha, Ranajit, 31, 50 Gujranwala, 129 Habeas corpus, 32–33, 69–97; ad subjiciendum, 81; ad testificandum, 84; and contestations of power, 74–83; suspension of, 72, 95; symbolism of, 75; three cases related to, 83–95 Habeas Corpus Act of 1679, 72, 91, 93–94, 163n. 14 Habeas Corpus Suspension Act of 1688, 95 Haldane, Richard, 106 Hall, Stuart, 30 Hallam, Henry, 108 Hampden, John 22 Hardt, Michael, 143, 144 Harem, 55 Hart, H. L. A., 12–13, 35–39, 49, 120–22, 124, 128 Hastings, Warren, 3, 59, 74, 79, 80

Index Hayek, Friedrich A., 8 Hazra, J. M., 90 Hegemony, 11, 31 Hermeneutics, 16 Heuston, R. F. V., 22 High Courts, 74, 80, 89, 96–97 Hill, George, 163n. 31 Hill v. Bigge, 163n. 31 Hinduism, 63, 64, 88, 90, 91 Hindu New Year, 99 Histoire Philosophique et Politique des Etablissements et du Commerce des Européens dans les deux Indes (Raynal), 50 Historiography, 11, 30, 49–50, 107–8, 135 History of Sexuality, The (Foucault), 13 History of the Criminal Law of England (Stephen), 67 Hobbes, Thomas, 46, 66 Holdsworth, W. S., 102, 156n. 55 Hostiensis, school of, 24 Humanitarianism, 50, 144 Human rights, notion of, 141–42 Hunt, Alan, 162n. 11 Hunter, W. W., 67 Hunter Committee, 101, 126, 130, 131 Huxley, Thomas, 110 Ideology, 11, 24, 54, 134–36; and the colonial concept of law, 38, 46, 54–55; and constitutional dictatorship, 18; and habeas corpus, 74; and martial law, 101, 104, 108, 111, 114, 123–24 Ilbert Bill, 28–30 Impeachments, 57 Impey, Elijah, 75, 80–82, 165n. 40 Imprisonment, 74–75, 76, 92 Indian Councils Act of 1861, 43, 88, 89, 97

189 Indian Extradition Act, 96 Indian High Courts Act, 80, 89 Indian Independence Act of 1947, 1, 138 Indian Penal Code, 41 Influenza epidemics, 126 International Association of Legal Science, 139 Interventionism, 143 In the Matter of Ameer Khan, 92–94 In the Matter of Rudolf Stallman, 96 Introduction to English Legal History (Baker), 69 Introduction to the Study of the Law of the Constitution (Dicey), 8, 21 Ireland, 7, 46; and habeas corpus, 89, 95; and martial law, 106, 114 Irrigation systems, 39 Irving, John, 83 Islam, 48, 54 Island of St. Vincent, 108 Isonomia, notion of, 8 Iterability, notion of, 124 Jallianwala Bagh massacre, 99–100. See also Massacres Jamaica, 5, 32, 105, 108–16 Jamaica Committee, 110 James I (king), 24, 45 James II (king), 2, 93 James VI (king), 45 Jay, Martin, 15 Jenks, Edward, 69 Jennings, Ivor, 21 Jews, 15 Johnson, Lieutenant Colonel, 129, 130 Jones, William, 64 Judicial Committee of the Privy Council, 43, 96, 116 Juridical, notion of, 13

190 Justice: and the Black Act, 30; and codification, 64; Dow on, 53–54, 55; use of the term, 11 Kashinath, 82 Kasijora case, 82, 83 Kasur, 129 Kelsen, Hans, 115 Kennet, Brackley, 104 Khan, Ameer, 92–95, 135 Khan, Kemaluddin, 81 King’s Bench, 81 Kingston, Jamaica, 110, 111 King v. DeUrilla, The, 85 King v. Monisee and Others, The, 84 King v. Nagapen, The, 85 Kitchlew, Dr., 126 La Bruyère, Jean de, 46 Lahore, 129 Landmarks, ancient, 65 Land surveys, 39 Law of the Constitution (Dicey), 21 Law Quarterly Review, 117 Laws of the Postcolonial (Darian-Smith and Fitzpatrick), 142 Lectures on Jurisprudence (Austin), 36 Legislation Orientale (Anquetil-Duperron), 46 Legitimacy, 6, 108, 131 Leviathan (Hobbes), 66 Lex Loci Report, 63–65 Liberalism, 114 Liberty, writ of, 32, 69–97. See also Habeas corpus Littledale, Justice, 105 Livingstone, David, 63 Locke, John, 16, 31, 78, 141 Louis XIV (king), 46 Louisiana Code, 63 Luddite riots, 169n. 19

Index Macaulay, Thomas B., 30, 40, 62–63, 65, 68, 119 MacCormick, Neil, 36 Mackintosh, James, 109 Madras, 26, 57, 80, 85, 88 Magna Carta, 72, 92, 163n. 14 Maine, Henry, 36, 66, 67 Maitland, F. W., 2, 71–72, 163nn. 13, 14 Majorca, 72 Malcolm, John, 57–61, 127 Malwa, 59 Mandamus, writ of, 82 Mann, Kristin, 25 Mansfield, Lord, 2, 104, 105; and Campbell v. Hall, 24, 46, 134, 159n. 27; and habeas corpus, 76–78, 86 Marais v. General Officer Commanding; Ex parte D.F. Marais, 116–18 Marsh, Norman, 141 Marshall, P. J., 25 Martial law, 32–33, 99–131; and the Amritsar massacre, 32, 101, 118–31, 136; and habeas corpus, 97; and the Hunter Committee, 101, 126, 130, 131; in Jamaica, 5, 32, 105, 108–16; and Marais v. General Officer Commanding; Ex parte D.F. Marais, 116–18; and salus populi suprema est lex, 2, 102, 103 Marxism, 11, 30, 122 Massacres, 32, 38, 99–131. See also Amritsar massacre Mayor’s Court, 79 Medieval scholarship, 24 Mercantilism, 26 Metcalfe, Charles, 57, 58 Mexico, 143 Middle East, 25 Mill, John Stuart: and the colonial concept of law, 40, 50, 56, 66; and martial law, 110, 114, 119–20

Index Milner, Neal, 71 Minorca, 76 Minute on Indian Education, 119 Minute on the Administration of Justice in British India (Stephen), 10 MISA (Maintenance of Internal Security Act), 139 Modernity, 31, 61, 73 Mofussil, 9, 79, 84–85, 92 Mohammed, 54, 67–68 Mokerjee, J., 97 Monarchical government, 13, 47; and the colonial concept of law, 45–48; in France, 44, 46, 48; and habeas corpus, 70–78, 80, 86, 88, 90, 93; and martial law, 102–4, 130; and Pakistan, 138 Monopoly, 26–27 Monson, George, 80 Montagu, Edwin, 70, 125–26, 173n. 84 Montagu-Chelmsford Reforms, 126 Montesquieu, Charles de Secondat, Baron de, 16–17, 29, 31, 87; and the colonial concept of law, 47–49; and the French monarchy, 46; and Oriental despotism, 44; The Spirit of the Laws, 16–17, 29, 44, 46–47, 49 Moore, Sally, 35, 36 Morality: and the colonial concept of law, 3–4, 53, 56, 65–66, 68; and martial law, 125; universal, 53 Morant Bay, Jamaica, 109–11 Morgan, Edmund, 8 Mostyn, John, 24, 76–77, 134 Mostyn v. Fabrigas, 24, 76–77, 134 Muddoosooden Sandell v. Chumpuck Mollah Dabey, 85 Mughal, 26, 27, 93; and the colonial concept of law, 50–52, 58; and habeas corpus, 79–80 Mullick, Goculnauth, 84

191 Munro, Thomas, 57 Muslims, 50, 64, 88 Mutiny, 88, 103 Mutiny Acts, 103 Mythology of Modern Law, The (Fitzpatrick), 28 Napier, Charles, 105, 125 Nationalism, 4, 126, 137 National Socialism, 15 Nation-state, 14, 137, 141 Nativism, 57–60 Natural law, 53, 57, 122–23 Nazim, 79 Nazism, 15 Negri, Antonio, 143, 144 Nehru, Jawarharlal, 139 Nelson, Brigadier, 111–15 Neumann, Franz, 7 Nihilism, 71 Niobe, legend of, 123 Norm, concept of, 14, 20, 136 Normalization, 14, 29 Norman, Justice, 92–95, 135 Northern Ireland Emergency Provisions Act, 95 Notrecht, 20 Obedience, 38, 119–20 Oriental despotism, 4, 10, 31–32; and the colonial concept of law, 39, 42–55, 62; and habeas corpus, 87; phantasm of, 44–55. See also Despotism Orientalism, 6, 39, 41–55, 62 Orientalism (Said), 6 Orme, Robert, 50–51, 54–56 Orme, William, 50–51 Other, and fascism, association of, 12 Ottoman Empire, 51

192 Our Global Neighbourhood (report), 141 Pakistan, 1, 137–39 Panchayat, 79 Parliament, 2, 21–22, 139; and the colonial concept of law, 42, 46, 50; and habeas corpus, 75, 78–79, 82–83; and martial law, 106, 109, 114, 128 Parliamentary Select Committee, 59, 64 Paternalism, 57, 61 Peel, Robert, 105–6 Penal Code, 62–63, 65, 68 Permanent Settlement for Bengal, 56 Perry, Erskine, 65, 86, 87, 94 Petition of Right, 103, 112, 118, 163n. 14, 168n. 12 Phear, Justice, 90, 91 Pinney, Charles, 105 Poaching, 10 Pocock, J. G. A., 24 Police, 15, 51, 106 Political Theology (Schmitt), 15, 19 Politics (Aristotle), 46 Pollock, Frederick, 43, 117, 169n. 31 Positivism, 12, 33, 35–37, 131 Posse comitatus, 104, 169n. 19 Postcolonial criticism, 6, 14, 27, 46, 133–44 Power: alternative concepts of, 20; Bentham on, 35; and the colonial concept of law, 53, 55, 67; contestations of, 74–83; Dow on, 53; Foucault on, 14–15, 71; Guha on, 31; and habeas corpus, 71, 74–83, 94; /knowledge, 6, 41; and martial law, 104, 125–26, 130–31; and monopolies, 27; normative con-

Index cept of, 14; and Orientalism, 41; Scott on, 39 Powers, separation of, 48 Prevention of Terrorism Act, 95 Primitivism, 28, 31–32 Principles of 1793, 56 Prisons, 74–75, 76, 92 Privy Council, 96, 97, 116–17 Property rights, 57, 73 Province of Jurisprudence Determined, The (Austin), 36 Punishment: capital, 111; and the colonial concept of law, 37–38, 53–54, 59–60, 62–63; Dow on, 53–54; Hart on, 37–38; Macaulay on, 62–63; and martial law, 123; and mythical violence, 123; and the Penal Code, 62–63 Punjab, 99–100, 118, 124–31 Pym, John, 22 Queen v. Burah, 96, 97 Queen v. Vaughn and Another. In the Matter of S.M. Ganesh Debi, alias Mani, 90–91 Qur’an, 54 Race, 28-30, 32; Chatterjee on, 29-30; and the colonial concept of law, 40, 48; Fitzpatrick on, 28; and martial law, 101, 114, 119 Racialism, 29, 48 Radzinowicz, Leon, 102, 167n. 9 Raj, 60, 131 Ratnagiri, 58 Raynal, Abbé, 50 Raz, Joseph, 9, 154n. 16 Rebellions, 5, 18, 29, 102–18 Refashioning Futures: Criticism after Postcoloniality (Schott), 39

Index Regina v. Nelson and Brand, 112, 114–15 Regina v. Shaik Boodin, 86, 87 Regulating Act of 1773, 42–43, 79–81, 88 Regulation V (1816), 58 Regulation III (1818), 6–7, 89, 92– 94 Rehabilitation, 124 Religion: Christianity, 24, 45, 52, 54; and codification, 63, 64–65; Hinduism, 63, 64, 88, 90, 91 Renaissance, 24 Restoration, 103 Revenue collectors, 81, 82 Revolt of 1857, 80, 88, 89 Rex v. Goculnauth Mullick, 84 Rex v. Kennet, 104–5 Rex v. Pinney, 125, 130 Rex v. Warren Hastings and Others, 164n. 38 Richards, Earle, 117–18, 167n. 11 Riot Act, 104 Riots, 101–18, 127–28 Ripon, Lord, 29 Rise and Fulfillment of British Rule in India (Garett and Thompson), 38–39 Roberts, Richard, 25 Roe, Thomas, 26 Roman law, 24 Rossiter, Clinton L., 17–19 Rowlatt, Sydney A. T., 126 Rowlatt Act, 126, 127 Royal Charters of 1726 and 1753, 79, 81 Royal Commission, 110 Royal Prerogative, 77 Rudolph, Lloyd, 139 Rudolph, Susanne, 139 Rule nisi, 92

193 Rule of law, definition of, 8–16 Rule of Law: Political Theory and Legal Systems in Modern Society, The (Neumann), 7 Ryan, E., 61–62 Salus populi suprema est lex (safety of the people is the supreme law), 2, 102, 103, 167n. 11 Samaj, Brahmo, 90 Santan Dharm College, 129 Sassen, Saskia, 143 Satyagraha, 126 Satyapal, Dr., 126 Scalia, Antonin, 16 Scheme for the Administration of Justice, 79 Schmitt, Carl, 15, 19–20, 144 Scire facias, 75, 163n. 20 Scotland, 45 Scott, David, 39–40 Second Treatise (Locke), 16 Self-defense, 136 Sepoys, mutiny of, 88 Shapiro, Martin, 73 Sharpe, Robert J., 70 Shibboleth, use of the term, 4 Sikhs, 57 Simpson, A. W. B., 139–40 Slavery, 52, 54 Smith, Adam, 27 Sociology, 73, 113 Somalia, 144 Sorel, Georges, 95 South Africa, 73 South Korea, 143 Spain, 24, 77 Special Reference (Pakistan), 1–2, 3, 138–39 Spirit of the Laws, The (Montesquieu), 16–17, 29, 44, 46–47, 49

194 State: Chatterjee on, 28–30; as an expressive totality, 49; provision for the, notion of, 17; violent origin of, 113, 115. See also Governmentality Stein, Burton, 50 Stephen, James Fitzjames, 4–5, 9–10, 41, 134; and codification, 66; and the colonial concept of law, 38, 61, 66, 66–68; on despotism, 61; and Dicey, 21; on the Indian Penal Code, 41; and Oriental despotism, 44 Stet pro ratione voluntas, 77 Steward, John, 164n. 38 Stokes, Eric, 40, 57, 60–61 Stuarts, 22, 44, 103 Styles, John, 3–4 Subaltern Studies movement, 30–31 Sundernarain, Raja, 82 Supreme Court: and the colonial concept of law, 65; and habeas corpus, 75, 80, 82–87, 89; Special Reference, 1–2, 3, 138–39. See also specific cases Thomas, Nicholas, 22 Thompson, Edward P., 10–12, 38–39, 135 Tindal, Chief Justice, 107, 128 Tone, Wolf, 103–4 Touchet, John, 83 Touchet Petition, 83, 165n. 40 Townshend, Charles, 107–8, 119 Trade: free, 26, 140–41; growth of, 25. See also Economics; Globalization Treaty of Utrecht, 77 Turkey, 46–47, 51 Ulster Covenant, 22

Index Ungovernable People, An (Brewer and Styles), 3–4 United Nations: Declaration of Human Rights, 141; International Covenant on Civil and Political Rights, 17 Utilitarianism, 40, 56, 57, 66 Vaughn, J., 90 Venn, Jane, 66 Victoria (queen), 88 Victorian era, 29, 48, 66 Violence: Benjamin on, 122–24, 129, 136; Cover on, 122; and martial law, 32, 99–131; mythical, 123, 124, 129. See also Massacres; Punishment “Violence and the Word” (Cover), 122 Vitae et necis potestatem, 24, 45 Voltaire, 46 Washbrook, David, 73 Wealth of Nations, The (Smith), 27 Weber, Max, 40, 68, 73 Weimar constitution, 15 Weimar Germany, 15, 17 Whigs, 10, 21, 40 Whigs and Hunters: The Origins of the Black Act (Thompson), 10 Wickham, Gary, 162n. 11 William the Conqueror, 24 Witham, John, 75 Women, status of, 55, 90–91 Woodroffe, J., 96–97 World Bank, 143 World Trade Organization, 143 World War I, 97, 126 World War II, 17, 141, 142 Writ of capias, 82