The Jurisprudence of Emergency: Colonialism and the Rule of Law

Notes

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 153 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...