The Jurisprudence of Emergency
Colonialism and the Rule of Law
Publication Year: 2003
Published by: University of Michigan Press
Series: Law, Meaning, and Violence
This book began as a dissertation at the University of California, Berkeley. My thanks to all of my teachers there: Tom and Barbara Metcalf, 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...
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,...
Chapter 2. The Colonial Concept of Law
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 ...
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 cor-us 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...
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,...
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...
Appendix A The Administrative Structure of Justice in British India
Appendix B The History of Nineteenth-Century Legal Codification in British India